Professional Documents
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European Court of Human Rights (Besnik Cani vs. Albania)
European Court of Human Rights (Besnik Cani vs. Albania)
JUDGMENT
STRASBOURG
4 October 2022
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
BESNIK CANI v. ALBANIA JUDGMENT
INTRODUCTION
1. The applicant is a former prosecutor and the case concerns his
complaint under Article 6 § 1 of the Convention that the Special Appeal
Chamber that dismissed him from his former office was not “a tribunal
established by law”, given that one of the judges that heard his case had been
appointed to that position in violation of a statutory eligibility criterion.
THE FACTS
2. The applicant was born in 1970 and lives in Tirana. He was represented
before the Court by Mr E. Halimi, a lawyer practising in Tirana.
3. The Government were initially represented by their former Agent,
Ms B. Lilo and subsequently by Mr O. Moçka, General State Advocate.
4. The facts of the case may be summarised as follows.
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A. General background
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9. Following an open call for the recruitment of five judges to the District
Court of Tirana and L.D.’s application for one of the positions, on
5 November 2016 the HCJ decided to disqualify L.D. from the competition
on the grounds that he had been dismissed from the same position on
24 December 1997.
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Tirana (see paragraph 8 above) and alleged that L.D. had engaged in the
“falsification of documents” by submitting to the Peoples’ Advocate an
application which had stated that he had never been dismissed from any office
(see paragraph 10 above). Following a decision adopted by the prosecutor’s
office on 15 July 2020 to charge L.D. with falsifying documents, on
24 July 2020 the SAC decided to suspend L.D. from his office as SAC judge.
16. Following the Supreme Court’s confirmation of L.D.’s conviction for
the said offence (see paragraph 27 below), on 31 May 2021 the disciplinary
commission of the SAC (“the Disciplinary Commission”) – which is the body
with authority to decide on disciplinary breaches committed by judges of the
SAC – dismissed L.D. from his office of SAC judge. The Disciplinary
Commission referred to Article 128 § 2 (b) of the Constitution, finding that
L.D.’s criminal conviction amounted to a disciplinary breach that rendered
him unfit to continue holding the office of SAC judge. In response to L.D.’s
argument that his conviction was contrary to the law, the Disciplinary
Commission noted that its jurisdiction was confined to the question of
whether L.D. had been convicted or not and that it could not hear arguments
regarding the merits of the conviction.
1. First-instance judgment
17. In its indictment against L.D. the prosecutor’s office submitted, in so
far as relevant, that under domestic law only candidates who had not been
previously dismissed from an office could be appointed as judges of the SAC.
They further argued that L.D. had lodged a forged application with the
domestic authorities, contrary to Article 186 § 1 of the Criminal Code; the
forgery had consisted of a written statement asserting that he had never been
dismissed from any office.
18. L.D. denied the charge. He submitted that the 1997 disciplinary
measure against him had been removed from his record (expunged) pursuant
to section 33(6) of the 2008 Judiciary Act (Law no. 9877/2008 on the
organisation and functioning of the judiciary, as amended) (see paragraph 55
below), which in his view provided that disciplinary measures in respect of
serious breaches were to be removed from the record of the judge concerned
within three years if no additional disciplinary measure had been imposed
during that period.
19. On 1 December 2020 the Anti-Corruption and Organised Crime Court
of First Instance found L.D. guilty of forging documents and sentenced him
to six months’ imprisonment, suspended for twelve months.
20. The court held that under domestic law a candidate was disqualified
from holding the office of SAC judge if he/she had been subjected to the
disciplinary measure of dismissal from office, regardless of the date on which
that measure had been imposed.
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21. Furthermore, the court noted that under section 6(1) (dh) of the
Vetting Act, if a candidate had been subjected to the disciplinary measure of
dismissal from office it meant that that candidate did not meet the statutory
conditions for appointment to the position of SAC judge.
22. In response to L.D.’s argument that the measure against him had been
removed from his record, the court noted that section 32(1) of the 2008
Judiciary Act provided for three kinds of disciplinary measures, namely:
(i) less serious measures, (ii) serious measures and (iii) very serious
measures. In the court’s view, section 33(6) of the 2008 Judiciary Act
provided that all less serious and serious disciplinary measures were to be
removed from the record of the judge concerned upon the expiry of the
relevant time-limits; however, it did not provide for the removal of very
serious disciplinary measures, such as dismissal from office. The court also
cited section 150 § 3 of the Status of Judges and Prosecutors Act (Law
no. 96/2016, as amended – see paragraph 54 below), which governed the
matter after the repeal of the 2008 Judiciary Act and which provided that the
disciplinary measure of dismissal from office could not be removed from a
judge’s record. The court therefore concluded that the 1997 disciplinary
measure against L.D. had not been removed from his record.
23. Lastly, the court also stated that had L.D.’s dismissal from his office
in 1997 been known to the domestic authorities, it would have disqualified
him from being appointed as an SAC judge.
2. Second-instance judgment
24. Following an appeal lodged by L.D., on 8 March 2021 the Anti-
Corruption and Organised Crime Court of Appeal upheld the first-instance
judgment, essentially reiterating the same reasons.
25. The appellate court stated in particular that:
“The content of the application/request [lodged by L.D. for a position on the SAC] in
this case is important and carries consequences, as the non-fulfilment of the formal
criteria provided [in section 6(1) of the Vetting Act] leads to the disqualification of the
candidate/applicant. This rule demonstrates the importance that the lawmaker attached
to these criteria, which relate to the personal qualities that an applicant/candidate must
possess in order to be appointed to the institutions [overseeing the] transitional re-
evaluation of judges and prosecutors. These qualities/criteria, [which are] required by
law, are important when cited before a public institution – all the more so in the case at
hand, where the whole process of the transitional re-evaluation of judges and
prosecutors is directly related to public trust in the justice [system] (which is the purpose
of the creation of these institutions)”
26. The appellate court also held that:
“... the fact that the bodies empowered by law for the verification of candidates to the
transitional re-evaluation institutions of judges and prosecutors have not performed the
relevant verifications in accordance with the legal requirements [...], does not exclude
the liability of the defendant, who, intentionally and in full awareness has presented in
his application a false circumstance, [thereby] hiding a disqualifying condition related
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32. The applicant was appointed to the post of prosecutor in 2003. Upon
the entry into force of the Vetting Act in 2016 and his appointment as a
member of the governing body of the prosecutor’s office (namely, the High
Prosecutorial Council), the applicant was added to a priority list of persons to
be vetted.
33. On 27 November 2018 the IQC confirmed the applicant in his
position. The IQC found that the applicant had not concealed any assets: it
did find a number of inaccuracies in his annual declarations of assets, and the
applicant was unable to demonstrate the lawful source of various payments
totalling 819,812 Albanian leks (ALL – approximately 6,800 euros (EUR))
that he had received over an eleven-year period; however, in the IQC’s view
the size of those sums were insufficient to justify his dismissal. Moreover, the
IQC concluded that the applicant had not had any inappropriate contact with
individuals involved in organised crime and that no problematic issues had
been found during his integrity background check. Lastly, the IQC found that
there had been some circumstances that had called into question the
applicant’s professionalism and ethics; however, they had not constituted
sufficient grounds for concluding that the applicant did not meet the
minimum professional or ethical standards. Accordingly, the IQC referred
those matters to the body in charge of disciplinary breaches for further
verification.
34. Following an appeal by the Public Commissioner’s Office against the
IQC’s decision, the case was allocated to the SAC, sitting as a bench of five
judges (including L.D.).
35. On 17 January 2020 the applicant – alleging, inter alia, that L.D. had
been appointed to the SAC despite the fact that he had not met the statutory
eligibility requirements (see paragraph 8 above and paragraph 50 below) –
lodged a request that the SAC terminate L.D.’s term of office (“the first
request”). On the same date, the applicant lodged a criminal complaint
against L.D. alleging forgery (see paragraph 15 above). On 3 February 2020
the president of the SAC responded to the applicant by means of a letter
indicating that the SAC did not have jurisdiction to examine the request in so
far as it was related to events that had occurred prior to the appointment of
L.D. as an SAC judge (nuk ka per kompetencë dhe juridiksion shqyrtimin e
kërkeses suaj ... pasi pretendimet tuaja i përkasin periudhës përpara emërimit
të [L.D.] në funksionin e anëtarit të Kolegjit).
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A. Constitution
44. The relevant parts of Articles 127 and 128 of the Constitution, as
amended in 2016 read as follows:
“Article 127
1. The term of Constitutional Court judges shall end when:
...
d) it is established that he/she fails to comply with the eligibility and incompatibility
requirements;
...
Article 128
...
2. Disciplinary proceedings against a judge [of the Constitutional Court] shall be
conducted by the Constitutional Court, which shall order the dismissal of that judge if
he or she:
...
b) has been convicted by a final court judgment of the commission of a crime.”
45. Article 131 of the Constitution, as amended in 2015 and 2016, reads
as follows:
“The Constitutional Court decides on:
...
(e) the matters related to the eligibility and incompatibilities in the exercise of their
functions of the President of the Republic, the members of the Parliament, the officers
of the bodies provided for in the Constitution, as well as [matters related] to the
verification of their appointment.
...
(f) the complaints of individuals against any acts of the public authorities or judicial
decisions violating the fundamental rights and freedoms guaranteed by the Constitution,
after all effective legal remedies for the protection of those rights have been exhausted,
unless otherwise provided by the Constitution.”
46. Pursuant to Article 179/b § 5 of the Constitution, the SAC was
established as one of the chambers of the Constitutional Court for a period
limited to nine years.
47. Under Article C § 3 of the annex to the Constitution, judges of the
SAC have the status of judges of the Constitutional Court.
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49. Under section 4(6), the vetting bodies may apply the procedures
provided in the Code of Administrative Procedure (Law no. 44/2015 as
amended) or the Administrative Courts Act (Law no. 49/2012, as amended)
when they deem it appropriate and when a certain procedure is not provided
by the Constitution or the Vetting Act.
50. Section 6(1) (dh) of the Vetting Act reads:
“Section 6 – Conditions for the appointment of members of the re-evaluation
institutions
1. An Albanian citizen may be appointed as a member of the [Independent
Qualification] Commission or [Special] Appeal Chamber if he fulfils the below-stated
conditions:
...
c) [he/she] has received positive evaluations of his professional skills, ethics and
moral integrity, in the event that he has been subjected to previous evaluations;
...
dh) there has been no instance of the disciplinary measure of dismissal from office
[undertaken] against him, or any other disciplinary measure that is still in force,
pursuant to the legislation at the time of his applying [for a position on the vetting
bodies];”
51. The Status of Judges and Prosecutors Act, which entered into force on
22 November 2016, lays down the rules regarding the status of “magistrates”
(magjistratët) – that is to say of judges and prosecutors.
52. Section 28 provides the conditions that an individual must meet in
order to be appointed as a magistrate; point (dh) thereof provides that a person
has the right to apply for admission to the initial training course for
magistrates if he or she has not been dismissed from an office on disciplinary
grounds and is not subject to any disciplinary sanction that is still in force.
53. Section 66 of the Act reads:
“Section 66 - Ineligibility and Incompatibility
1. The status of [a person as] a magistrate shall end on the day when the competent
authority establishes the causes of ineligibility as follows:
a) The magistrate does not fulfil the criteria set out in Article 28 of this Act;
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b) The appointment decision is invalid and does not generate any legal consequences
and is declared null and void.
...
4. The [High Judicial] Council shall adopt a decision declaring the termination of a
person’s status [as a magistrate] no later than two weeks of it being notified of the
grounds for [that person’s] ineligibility or incompatibility.
5. The decision shall state the date of the ending of the person’s status as magistrate,
as set out in paragraph 1 or 2 of this Section.
6. Any action carried out by the magistrate following this date shall be invalid and it
shall be deemed to have brought no legal consequences and be considered null and
void.”
54. Section 150(3) states that the disciplinary sanction of dismissal from
office imposed on judges and prosecutors will not be expunged or erased from
the register of disciplinary sanctions kept by the responsible authorities.
55. The relevant sections of the 2008 Judiciary Act read as follows:
“Section 32 - Disciplinary violations
1. Disciplinary violations by judges are divided into the following categories:
a) very serious;
b) serious;
c) minor.
...
Section 33 - Disciplinary measures
1. Disciplinary measures are imposed in fair proportion to the violation committed.
2. The disciplinary measures that may be imposed are:
a) a reprimand;
b) a reprimand with a warning;
c) temporary demotion to a lower-level court for a period of one to two years;
ç) a transfer for one to two years to a court of the same level outside the judicial district
to which the judge [in question] was appointed;
d) dismissal from office.
3. For very serious violations ... the disciplinary measure [of dismissal from office]
provided in point “d” of subsection 2 of this section shall be imposed.
4. For serious violations ..., the disciplinary measures provided in points “c” and “ç”
of subsection 2 of this section shall be imposed.
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5. For minor violations ..., the disciplinary measure provided in points “a” and “b” of
subsection 2 of this section shall be imposed.
6. For the purposes of disciplinary proceedings, serious disciplinary measures are
removed [from the record of the person concerned] within three years of the date on
which they were imposed if no other disciplinary measure has been imposed, while
minor disciplinary measures are removed within two years from the date on which they
were pronounced if no other disciplinary measure has been imposed.”
56. Article 494 § (ë) of the Code of Civil Procedure provides that a party
may request the revision of a judgment that has become final in the event that
the European Court of Human Rights finds a violation of the Convention or
those of its protocols that have been ratified by Albania.
57. Paragraph 3 of section 71/c of the Constitutional Court Act (Law
no. 8577 of 10 February 2000, as amended by Law no. 99/2016) provides that
following a judgment by an international court finding that a decision of the
Constitutional Court has violated a party’s basic rights and freedoms, the
interested party may apply for the reopening of the proceedings in question
before the Constitutional Court. Under paragraph 5(b) of that same section,
such an application shall not be allowed if the international court granted just
satisfaction but did not indicate that the domestic proceedings in question
should be reopened.
58. The other relevant provisions of domestic law and practice have been
set out in Xhoxhaj, cited above, §§ 93-209.
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THE LAW
A. Admissibility
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B. Merits
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the termination of the careers of magistrates who had served for many years
within the justice system. In the applicant’s opinion, that had been the only
way to ensure that the vetting process was lawful and trustworthy in the eyes
of both the people and of the magistrates.
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how they should be interpreted so as to best reflect its purpose and, ultimately,
ensure that the protection it offered was truly effective.
84. As regards the notion of a “tribunal”, in addition to the requirements
arising from the Court’s settled case-law, the Court emphasised the
paramount importance of a rigorous process for the appointment of judges to
ensure that the most qualified candidates – in terms of both technical
competence and moral integrity – are appointed to judicial posts. The Court
noted that the higher a tribunal is placed in the judicial hierarchy, the more
demanding the applicable selection criteria should be. In the Court’s view,
such merit-based selection not only ensures the technical capacity of a
judicial body to deliver justice as a “tribunal”, but it is also crucial in terms
of ensuring public confidence in the judiciary (ibid., § 222).
85. As regards the term “established”, the Court found that the process of
appointing judges necessarily constituted an inherent element of the concept
“established by law” regard being had of its fundamental implications for the
proper functioning and the legitimacy of the judiciary in a democratic State
governed by the rule of law. In the Court’s view, breaches of the law
regulating the judicial appointment process might render the participation of
the relevant judge in the examination of a case “irregular” (ibid., §§ 226-227).
86. As regards the phrase “by law”, the Court clarified that the third
component also meant a “tribunal established in accordance with the law”. It
observed that the relevant domestic law on judicial appointments should be
couched in unequivocal terms, to the extent possible, so as not to allow
arbitrary interferences in the appointment process (ibid., §§ 229-230).
87. Subsequently, the Court noted that although the right to a “tribunal
established by law” was a stand-alone right under Article 6 § 1 of the
Convention, a very close interrelationship had been formulated in the Court’s
case-law between that specific right and the guarantees of “independence”
and “impartiality”. The institutional requirements of Article 6 § 1 shared the
ordinary purpose of upholding the fundamental principles of the rule of law
and the separation of powers (ibid., §§ 231-233).
88. In this connection the Court also noted that the principle of the rule of
law encompasses a number of other equally important and potentially
countervailing principles (ibid., §§ 237-240). These include in particular legal
certainty and respect for the force of res judicata, as well as the principle of
irremovability of judges during their term of office; departures from those
principles can be justified only in exceptional and well-defined
circumstances. It is for the national authorities in each case to “determine
whether there is a pressing need – of a substantial and compelling character
– justifying a departure” from the principles of legal certainty and public
confidence in the judiciary “in the particular circumstances of a case” (ibid.
§ 240).
89. In order to assess whether the irregularities in a given judicial
appointment procedure were of such gravity as to entail a violation of the
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right to a tribunal established by law, and whether the balance between the
competing principles had been struck by State authorities, the Court
developed a threshold test made up of three criteria, taken cumulatively (ibid.,
§ 243).
90. In the first place, there must, in principle, be a manifest breach of the
domestic law, in the sense that the breach must be objectively and genuinely
identifiable. In determining this matter, the Court will cede to the national
courts’ interpretation as to whether there has been a breach of the domestic
law, unless the breach is “flagrant” – that is, unless the national courts’
findings can be regarded as arbitrary or manifestly unreasonable. However,
the absence of such a breach does not rule out the possibility of a violation of
the right to a tribunal established by law, since a procedure that is seemingly
in compliance with the domestic rules may nevertheless produce results that
are incompatible with the object and purpose of that right. If this is the case,
the Court must pursue its examination under the second and third limbs of the
test set out below, as applicable, in order to determine whether the results of
the application of the relevant domestic rules were compatible with the
specific requirements of the right to a “tribunal established by law” within the
meaning of the Convention (ibid., §§ 244-245).
91. Secondly, the breach in question must be assessed in the light of the
object and purpose of the requirement of a “tribunal established by law” –
namely, to ensure the ability of the judiciary to perform its duties free of
undue interference and thereby to preserve the rule of law and the separation
of powers. Accordingly, breaches of a purely technical nature that have no
bearing on the legitimacy of the appointment process must be considered to
fall below the relevant threshold. Conversely, breaches that wholly disregard
the most fundamental rules in the appointment procedure (such as the
appointment of a person as judge who did not fulfil the relevant eligibility
criteria) or breaches that may otherwise undermine the purpose and effect of
the “established by law” requirement (as interpreted by the Court) must be
considered to contravene that requirement (ibid., § 246).
92. Thirdly, the review conducted by national courts, if any, as to the legal
consequences – in terms of an individual’s Convention rights – of a breach of
a domestic rule regarding judicial appointments plays a significant role in
determining whether such a breach amounted to a violation of the right of
access to a “tribunal established by law”, and thus forms part of the test itself.
An assessment by the national courts of the legal effects of such a breach
must be carried out on the basis of the relevant Convention case-law and the
principles derived therefrom (ibid., §§ 248 and 250).
93. The Court has applied the above test in a number of recent cases
pertaining to the requirement under Article 6 § 1 of the Convention that a
tribunal be established by law (see, most recently, Advance Pharma sp. z o.o
v. Poland, no. 1469/20, § 349, 3 February 2022; Dolińska-Ficek and Ozimek
v. Poland, nos. 49868/19 and 57511/19, § 353, 8 November 2021;
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Reczkowicz v. Poland, no. 43447/19, § 280, 22 July 2021; and Xero Flor w
Polsce sp. z o.o. v. Poland, no. 4907/18, § 289, 7 May 2021).
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96. Another undisputed matter between the applicant and the Government
was that the disciplinary measure against L.D. continued to be in force – that
is to say it had not been removed from his record. Although the Supreme
Court took the view that the disciplinary measure against L.D. had not been
removed from his record, the Court reiterates that those findings were limited
to the purpose of assessing L.D.’s criminal liability in relation to statements
made in his application for the SAC position, rather than the lawfulness of
his original appointment by Parliament as such. The latter question would
turn on the interpretation of the relevant rules set out by Albanian law on the
removal from judges’ records of disciplinary offences committed by them,
read together with section 6(1) (dh) of the Vetting Act. In addition,
section 6(1)(c) of the Vetting Act (see paragraph 50 above) mandated that
candidates for the position of judge on one of the vetting bodies should have
obtained in the course of their careers positive evaluations of their
professional skills and ethics and of their moral integrity, which seems hardly
compatible with prior dismissal for “breach of the law and incompetence.”
97. While it is not for the Court to render a definitive interpretation of
national law, especially in the absence of clear and authoritative
pronouncements by the national courts, it seems clear that L.D.’s dismissal
from office in 1997 as a judge of the District Court of Tirana raised serious
questions as to the lawfulness of his appointment by Parliament to the
position of SAC judge, which was furthermore specifically challenged by the
applicant during the domestic proceedings. The Court will therefore proceed
on the basis that the applicant’s claim in this regard was arguable and
sufficiently serious as to have triggered an obligation on the part of the
national courts to consider the question.
98. In view of the foregoing, the Court concludes that the applicant made
out a serious and arguable claim of a manifest breach of domestic law in the
appointment of L.D. to the SAC.
(β) Whether the breach of the domestic law pertained to a fundamental rule of
the procedure for appointing judges
99. When determining whether a particular defect in the judicial
appointment process was of such gravity as to amount to a violation of the
right to a “tribunal established by law”, regard must be had, inter alia, to the
purpose of the law purportedly breached – that is, whether it sought to prevent
any undue interference by the executive or the legislature with the judiciary,
and whether the breach in question undermined the very essence of the right
to a “tribunal established by law” (see Guðmundur Andri Ástráðsson, cited
above, §§ 226 and 255). In this connection, the Court has already noted that
eligibility requirements for the appointment of judges are considered
fundamental rules whose breach undermines the purpose and effect of the
“established by law” requirement (see, ibid., § 246).
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100. Accordingly, the Court will determine this point in the light of the
purpose of the rule that was purportedly breached – namely section 6(1) (dh)
of the Vetting Act. The Government’s argument that the other rules governing
the appointment of the judges of the SAC had been complied with carries
limited weight in this assessment.
101. The Court notes that, except for the above-noted argument that the
other rules governing the appointment of judge L.D. to the SAC had been
observed, the Government did not submit any comments regarding the
purpose of section 6(1)(dh) of the Vetting Act; neither did they put forward
any reasons as to why that rule should be considered to be a technical rule, a
breach of which would not be of any significant gravity.
102. On the other hand, the applicant submitted – and the Court agrees –
that the rule in question aimed at upholding the legitimacy of and public trust
in the vetting process. The Court is also inclined to agree with the domestic
courts, which – in so far as they approached this question within the context
of the criminal proceedings against L.D. – made similar statements in respect
of the importance of the eligibility requirement provided under
section 6(1)(dh) of the Vetting Act (see paragraphs 25 and 29 above). It seems
obvious that the appointment of a person who does not meet the statutory
criteria for a certain judicial office is capable of undermining the legitimacy
of the judicial function in question. In the Court’s view, the importance of the
statutory eligibility criteria for judges is also apparent from the Status of
Judges and Prosecutors Act, which provides that a failure to fulfil the
eligibility criteria leads to the termination of a magistrate’s term of office as
of the date of the decision recognising such failure, and irrespective of the
passing of time since the original appointment (see paragraph 53 above).
103. The Court would further note that as far as vetting proceedings are
concerned the SAC is the highest tribunal in the country. Accordingly, the
appointment to the SAC of a candidate who had been previously dismissed
from an office for a breach of the law and for incompetence (see paragraphs
9 and 51 above) is difficult to reconcile with the requirement that the higher
a tribunal is placed in the judicial hierarchy, the more demanding the
applicable selection criteria should be (see paragraph 84 above).
104. Although they did not contest the assertion that L.D. had been
appointed in contravention of section 6(1) (dh) of the Vetting Act, the
Government contended that there had been no breach of the applicant’s right
to a “tribunal established by law”, as L.D. had not disclosed the disciplinary
measure taken against him and the authorities had had no knowledge thereof.
They further maintained that, contrary to circumstances in the case of
Guðmundur Andri Ástráðsson, in the instant case the domestic authorities had
not interfered with L.D.’s appointment procedure in a way that would have
placed his independence in question. The Court will therefore address these
arguments in turn.
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(γ) Whether the allegations regarding the right to a “tribunal established by law”
were effectively reviewed and remedied by the domestic courts
109. The Government submitted that, unlike in the case of judges of the
regular Constitutional Court, there is no specific provision under Albanian
law providing for the early termination of the term of office of an SAC judge
on the grounds that he/she failed to meet the eligibility conditions. At the
same time, they referred to the combined effect of the proceedings before the
SAC, the Constitutional Court and the criminal courts, arguing that the
domestic authorities had reviewed the applicant’s allegations regarding the
SAC not being a “tribunal established by law” and had remedied his
complaints.
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and 284). However, no balancing of any kind was carried out by the domestic
courts in the present case.
114. The combined effect of the domestic proceedings – in particular, the
suspension and subsequent dismissal of L.D. from the SAC on the basis of
his criminal conviction – was able to prevent future similar allegations.
However, the Court does not consider that those proceedings remedied the
applicant’s complaint.
(δ) Conclusion
115. The Court has established that there was an arguable claim of a
manifest breach of a fundamental rule of the domestic law that had adversely
affected the appointment of L.D. as a SAC judge.
116. In the light of the foregoing, and having regard in particular to the
failure of the national courts to properly consider the relevant Convention
questions raised by the applicant, the Court concludes that there has been a
violation of Article 6 § 1 of the Convention owing to the fact that L.D. sat on
the SAC bench that examined the applicant’s case.
(b) As regards the alleged failure of L.D. to fulfil the other statutory eligibility
criteria
117. Having regard to the nature and scope of the violation found under
Article 6 § 1 of the Convention in respect of the applicant’s right to a tribunal
established by law (see paragraph 116 above), the Court decides to dispense
with the examination of the admissibility and merits of this part of the
complaint (see paragraph 77 above).
118. The applicant submitted that he had had no effective remedy before
a national authority before which to challenge his allegedly unlawful
dismissal by the SAC. In his view, there had, accordingly, been a violation of
Article 13 of the Convention.
119. The Government referred to Xhoxhaj (cited above, § 416) and
submitted that the SAC had exercised its full jurisdiction in assessing all the
factual and legal arguments submitted by the applicant. They further argued
that adding a third level of jurisdiction to the vetting proceedings would have
complicated and prolonged the process.
120. The Court notes that the applicant’s complaint is directed not against
the authorities’ failure to deal with the substance of his complaint under
Article 6 § 1 regarding the “tribunal established by law” aspect, but rather
towards the general absence of the possibility to lodge an appeal against the
decision of the SAC. Accordingly, the complaint falls to be considered in
conjunction with the complaint under Article 8 of the Convention that the
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26
BESNIK CANI v. ALBANIA JUDGMENT
established by law (see paragraph 116 above), the Court decides to dispense
with the examination of the admissibility and merits of these complaints.
A. Damage
131. The applicant asked the Court to award him pecuniary damages in
an amount equal to his monthly salary (approximately 2,200 euros (EUR))
covering the period from the date of his dismissal until the date of his
reinstatement in his position.
132. In respect of non-pecuniary damage, the applicant submitted that the
damage to his image and reputation, as well as the emotional stress that he
had suffered, could not be assigned a monetary value. He accordingly asked
the Court to award the symbolic amount of EUR 1.
133. The Government submitted that the claims were unreasonable.
134. The Court notes that it has found a violation of the right to “a tribunal
established by law” under Article 6 § 1 of the Convention without expressing
any opinion on the merits of his dismissal. The Court cannot speculate on
what the outcome of the vetting proceedings against the applicant would have
been had the requirements of Article 6 § 1 of the Convention been complied
with and it does not discern any causal link between the procedural violation
that it found and the pecuniary damage alleged; it therefore rejects this claim.
135. In respect of non-pecuniary damage, the Court considers that the
finding of a violation of Article 6 § 1 of the Convention constitutes adequate
just satisfaction for the purposes of the Convention.
136. The applicant did not submit any claims for costs and expenses. The
Court therefore does not make an award in this respect.
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BESNIK CANI v. ALBANIA JUDGMENT
A. Applicable principles
138. The Court reiterates that under Article 46 of the Convention the
Contracting Parties have undertaken to abide by the final judgments of the
Court in any case to which they are parties, execution being supervised by the
Committee of Ministers. It follows, inter alia, that a judgment in which the
Court finds a breach of the Convention or the Protocols thereto imposes on
the respondent State a legal obligation not just to pay those concerned the
sums awarded by way of just satisfaction, but also to choose, subject to
supervision by the Committee of Ministers, the general and/or, if appropriate,
individual measures to be adopted in its domestic legal order to put an end to
the violation found by the Court and to redress as far as possible the effects
(see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249,
ECHR 2000-VIII, and Stanev v. Bulgaria [GC], no. 36760/06, § 254,
ECHR 2012).
139. The Court further notes that its judgments are essentially declaratory
in nature and that, in general, it is primarily for the State concerned to choose,
subject to supervision by the Committee of Ministers, the means to be used
in its domestic legal order in order to discharge its obligation under Article
46 of the Convention (see, for instance, Öcalan v. Turkey [GC],
no. 46221/99, § 210, ECHR 2005-IV), provided that such means are
compatible with the conclusions and spirit of the Court’s judgment (see, for
instance, Scozzari and Giunta, cited above, § 249, and Ilgar
Mammadov v. Azerbaijan (infringement proceedings) [GC], no. 15172/13,
§§ 148-49, 29 May 2019). However, in certain special circumstances the
Court has found it useful to indicate to a respondent State the type of measures
that might be taken to put an end to the situation – often a systemic one –
which has given rise to the finding of a violation (see, for instance, Ilgar
Mammadov, cited above, § 153).
140. The Court does not have jurisdiction to order, in particular, the
reopening of proceedings (see Verein gegen Tierfabriken Schweiz
(VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 89, ECHR 2009).
Nevertheless, as stated in Recommendation No. R (2000)2 of the Committee
of Ministers, the practice of the Committee of Ministers in supervising the
execution of the Court’s judgments shows that in exceptional circumstances
the re-examination of a case or the reopening of proceedings has proved the
most efficient, if not the only, means of achieving restitutio in integrum (see
Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 48, 11 July 2017).
141. In a number of cases in which the Court has found a violation of the
right to a tribunal established by law, it has indicated that the most appropriate
form of redress would be a retrial or the reopening of domestic proceedings
(see Ilatovskiy v. Russia, no. 6945/04, § 49, 9 July 2009;
Momčilović v. Serbia, no. 23103/07, § 41, 2 April 2013; Ezgeta v. Croatia,
no. 40562/12, § 49, 7 September 2017; Gurov v. Moldova, no. 36455/02,
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BESNIK CANI v. ALBANIA JUDGMENT
144. In respect of general measures, the Court notes that L.D. was
suspended from exercising his functions as an SAC judge on 24 July 2020
and permanently removed from that office on 31 May 2021 (see paragraph
114 above). Furthermore, the Court reiterates that the finding of a violation
of the right to a tribunal established by law in the present case may not in
itself be taken to impose on the respondent State an obligation under the
Convention to reopen all similar cases that have since become res
judicata under domestic law (see Guðmundur Andri Ástráðsson, cited above,
§ 314, and paragraph 88 above).
145. Turning to the individual measures, the Court notes at the outset that
the vetting proceedings in respect of the applicant concerned primarily his
own rights and obligations as a career prosecutor and did not have any
implications for, at least directly, the rights and obligations of any third
parties. Furthermore, it is clear that the outcome of those proceedings, which
resulted in his immediate dismissal and the statutory imposition of a lifetime
ban on his returning to the post of magistrate (see Xhoxhaj, cited above,
§ 363), had serious consequences for his professional career.
146. The Government stated that it was not entirely clear under domestic
law whether there could be a reopening of the vetting proceedings.
147. On the one hand, they indicated that there was no specific provision
in domestic law allowing for the reopening of vetting proceedings. They
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BESNIK CANI v. ALBANIA JUDGMENT
suggested that this could have been a deliberate choice on the part of the
legislature, as vetting proceedings were limited by time constraints and
reopening them could complicate the process. They also stated that Article F
§ 8 of the annex to the Constitution, which provided that persons being vetted
had the right to “appeal” (ushtrojnë ankim) to the Court, could be construed
as indicative of the legislature’s intention to exclude the possibility of
reopening requests for proceedings that had been concluded by decisions of
the SAC.
148. On the other hand, the Government referred to the State’s obligation
to abide by binding international law. They also pointed out that
Article 494(ë) of the Code of Civil Procedure and section 71/c of the
Constitutional Court Act (see paragraphs 49, 56 and 57 above) provided for
the reopening of civil and constitutional proceedings, respectively, following
a finding by the Court of a violation, subject to any other conditions stated
therein. Those provisions could potentially serve as a basis for reopening the
proceedings in question, and in such a case, in the Government’s view, the
SAC would be the body with jurisdiction to consider such requests.
149. The Court takes note of the Government’s position that there might
be a legal avenue for the applicant to seek the reopening of the proceedings.
Accordingly, given the circumstances of the present case and to the extent
that that might be possible under domestic law, the most appropriate form of
redress for the violation of the applicant’s right to a “tribunal established by
law” under Article 6 § 1 of the Convention would be to reopen the
proceedings, should the applicant request such reopening, and to re-examine
the case in a manner that is keeping with all the requirements of Article 6 § 1
of the Convention.
150. Lastly, the applicant requested that the Court quash the SAC’s
decision of 27 February 2020 and order the Government to reinstate him
immediately in his former office. In view of its jurisdiction (see paragraph
139 above) and the nature of the violation that was found in respect of the
applicant’s vetting proceedings, the Court refuses this request.
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BESNIK CANI v. ALBANIA JUDGMENT
3. Holds, by six votes to one, that there is no need to examine the remaining
complaints under Articles 6 § 1 and 8 of the Convention;
G.R.
M.B.
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BESNIK CANI v. ALBANIA JUDGMENT – SEPARATE OPINION
1. This case mainly concerns the applicant’s complaint that his dismissal
as a prosecutor by the Special Appeal Chamber was in breach of his right to
a fair trial under Article 6 § 1 of the Convention. This was because the Special
Appeal Chamber was not “a tribunal established by law”, as one of the judges
who sat on that Chamber and heard his case had been appointed to that
position in violation of a statutory eligibility criterion.
It should be emphasised that in DMD GROUP, a.s. v. Slovakia
(no. 19334/03, § 58, 5 October 2010) the Court held that “under Article 6 § 1
of the Convention a tribunal must always be ‘established by law’” and that
“this expression reflects the principle of the rule of law which is inherent in
the system of protection established by the Convention and its Protocols”.
2. To state my position as to the operative provisions of the judgment, I
agree with points 1, 2 and 4, and I respectfully disagree with points 3 and 5.
I will explain below the reasons for my disagreement.
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BESNIK CANI v. ALBANIA JUDGMENT – SEPARATE OPINION
33
BESNIK CANI v. ALBANIA JUDGMENT – SEPARATE OPINION
the hierarchy.3 I also submitted that, since the guarantees of the right to a fair
trial under Article 6 are components of this right, the principle of
effectiveness, in order to fulfil its aim, must assist in giving these guarantees
– in the present case the guarantee of “a tribunal established by law” – their
fullest weight and effect and their corresponding full consequences according
to the norm of effectiveness.4
7. One issue remains to be examined in this connection, namely that of
the consequences of the lack of the Article 6 guarantee of “a tribunal
established by law” for the remaining complaints. It must be noted that the
remaining complaints in Guðmundur Andri Ástráðsson were also complaints
under Article 6 – in particular, the lack of the guarantees of the independence
of a tribunal and of the impartiality of the tribunal. In the present case,
however, the remaining complaints concerned both complaints under
Article 6 and a complaint under Article 8 of the Convention. As is noted in
paragraph 127 of the judgment, relying on his right to respect for his private
life under Article 8 of the Convention, the applicant alleged that the Special
Appeal Chamber’s decision to dismiss him had amounted to an interference
with that right, which had been neither in accordance with the law nor
proportionate to the legitimate aims pursued. Hence, the question arises
whether my approach in Guðmundur Andri Ástráðsson, namely that the other
complaints under Article 6 were rendered inadmissible ratione materiae, also
applies regarding the complaint under Article 8, which is a substantive right.
8. It should be made clear that the complaint under Article 8 could not be
dissociated from the complaint that there was no tribunal established by law
under Article 6. The alleged violation of Article 8 did not exist prior to the
alleged violation of Article 6 (that is to say, that the Special Appeal Chamber
was not a tribunal established by law), nor was it independent of that
complaint. On the contrary, the complaint of a violation of the right to private
life under Article 8 was a direct corollary of the violation of the right to a
tribunal established by law under Article 6. Had the alleged violation of
Article 8 pre-existed or been independent of the violation of Article 6, the
issue would have been different.
9. So, in my view, the impact of the lack of the guarantee of “a tribunal
established by law” on the Article 8 complaint would be the same as that of
the other complaints under Article 6, thus rendering all of those complaints
ratione materiae inadmissible and entailing their rejection. And given that all
those remaining complaints are thus automatically inadmissible as a result of
the finding that there is no tribunal established by law, it is not, in my view,
correct or at least accurate to say, as the judgment does, that there is no need
to examine those complaints. This apparent and automatic inadmissibility
should have immediately been acknowledged and stated by the Court as such,
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BESNIK CANI v. ALBANIA JUDGMENT – SEPARATE OPINION
and the Court should not simply have said that it was not necessary to
examine the remaining complaints.
10. I respectfully disagree with paragraph 135 of the judgment and the
corresponding point 5 of its operative provisions, namely that the finding of
a violation of Article 6 § 1 of the Convention constitutes adequate or
sufficient just satisfaction for the purposes of the Convention, in particular in
respect of any non-pecuniary damage. As I have also submitted in other
opinions, Article 41 of the Convention, as worded, cannot be interpreted as
meaning that the finding of a violation of a Convention provision could in
itself constitute sufficient “just satisfaction to the injured party”. This is
because the former is a prerequisite for the latter, and one cannot take them
to be the same (see paragraphs 5-9 of my joint partly dissenting opinions with
Judge Felici in Grzęda v. Poland [GC] no. 43572/18, 15 March 2022;
paragraph 2 of my partly dissenting opinion in Assemblée chrétienne des
Témoins de Jéhovah d’Anderlecht and Others v. Belgium, no. 20165/20,
5 April 2022; and paragraph 9 of my partly dissenting opinion in Abdi
Ibrahim v. Norway [GC], no. 15379/16, 10 December 2021).
Failure to award the applicant a sum in respect of non-pecuniary damage
for the violation of his rights amounts, in my view, to rendering the protection
of his right illusory and fictitious (see, to similar effect, the opinions referred
to above). This runs counter to the Court’s case-law to the effect that the
protection of human rights must be practical and effective and not theoretical
and illusory, as required by the principle of effectiveness which is inherent in
the Convention (see Artico v. Italy, 13 May 1980, §§ 33 and 47-48, Series A
no. 37).
11. Had the applicant not asked to be awarded the symbolic amount of
EUR 1 in respect of non-pecuniary damage (see paragraph 132 of the
judgment), and had I not been in the minority, I would have awarded the
applicant a substantial amount in respect of non-pecuniary damage. However,
since the issue concerns non-pecuniary damage and following the non ultra
petita (not beyond the request) rule, Ι would have ultimately awarded him
what he asked for, and I would have applied neither the admissibility criterion
in Article 35 § 3 (b) (no significant disadvantage) nor the rule de minimis non
curat praetor (the court is not concerned with trifles).
IV. Conclusion
12. In the light of the above, I conclude, regarding the points on which I
differ from the majority, that: (a) by finding that there was not “a tribunal
established by law”, the remaining complaints were automatically rendered
ratione materiae inadmissible, and therefore the Court should have reached
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BESNIK CANI v. ALBANIA JUDGMENT – SEPARATE OPINION
a conclusion to that effect and not left them undecided; and (b) that the
applicant should have been awarded the symbolic amount which he asked for
in respect of non-pecuniary damage.
36