European Court of Human Rights (Besnik Cani vs. Albania)

THIRD SECTION
CASE OF BESNIK CANI v. ALBANIA
(Application no. 37474/20)
JUDGMENT
Art 6 § 1 (civil) ● Tribunal established by law • Arguable claim of manifest

breach of fundamental domestic rule adversely affecting appointment of a
Special Appeal Chamber (SAC) judge sitting on panel which vetted and
dismissed prosecutor • Application of three-step test formulated in
Guðmundur Andri Ástráðsson v. Iceland [GC] • No clear and authoritative
pronouncement by the domestic courts on the question of a manifest breach
of domestic law • Authorities under an obligation to verify compliance of
SAC judges with statutory eligibility criteria • No effective domestic court
review and redress
Art 46 ● Individual measures ● Reopening of vetting proceedings, upon
applicant’s request, and re-examination of case in compliance with Art 6 § 1
requirements
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
In the case of Besnik Cani v. Albania,

The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Georges Ravarani, President,
Georgios A. Serghides,
María Elósegui,
Darian Pavli,
Peeter Roosma,
Andreas Zünd,
Frédéric Krenc, Judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 37474/20) 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, Mr Besnik Cani (“the applicant”), on 25 August 2020;
the decision to give notice to the Albanian Government (“the
Government”) of a part of the complaints under Article 6 § 1, Article 8 and
Article 13 of the Convention and to declare inadmissible the remainder of the
application;
the observations submitted by the respondent Government and the
observations in reply submitted by the applicant;
Having deliberated in private on 13 September 2022,
Delivers the following judgment, which was adopted on that date:
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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I. BACKGROUND TO THE VETTING PROCEEDINGS IN ALBANIA
A. General background
5. In 2016 Albania embarked on a far-reaching justice system reform,

which led to amendments to the Constitution and the enactment of a number
of statutes relating to, among other things, the re-evaluation of all serving
judges and prosecutors, and certain legal advisors/assistants (otherwise
referred to as the “vetting process”) (see Xhoxhaj v. Albania, no. 15227/19,
§§ 4-7, 9 February 2021). The most important provisions regarding the
vetting process were included in an annex to the Constitution.
6. The vetting process would be carried out by an Independent
Qualification Commission (Komisioni I Pavarur I Kualifikimit – “the IQC”)
at first instance and – in the event of an appeal – a Special Appeal Chamber
(“the SAC”) attached to the Constitutional Court (jointly referred to as “the
vetting bodies”). Albanian citizens who, among other conditions, had not
been subjected to the disciplinary measure of dismissal from office (masë
disiplinore e largimit nga puna) or who had not been subjected to another
disciplinary measure that was still in force could be appointed members of
the vetting bodies (ibid., § 123; see also paragraph 50 below). Following a
pre-selection process undertaken by the President of the Republic (or in
certain cases by the People’s Advocate), the candidates would be interviewed
and subsequently appointed by Parliament.
7. The IQC and the SAC would re-evaluate all serving judges and
prosecutors on the basis of three criteria: (i) an evaluation of their personal
assets, (ii) an integrity background check aimed at determining any possible
links to organised crime and (iii) an evaluation of their professional expertise.
The Public Commissioner’s Office would represent the public interest before
the vetting bodies; the International Monitoring Operation (“IMO”), led by
the European Commission and composed of international observers, would
support, monitor and supervise the re-evaluation process. At the conclusion
of each set of re-evaluation proceedings, the vetting bodies would give
reasoned decisions confirming in office or suspending or dismissing from
office the person being vetted.
B. Appointments and dismissals of judge L.D.
1. Appointment and dismissal as a judge of the District Court of Tirana

8. On 24 April 1994 L.D. was appointed as a judge of the District Court
of Tirana. On 24 December 1997 the High Council of Justice (“the HCJ”),
which at the time in question was the body that appointed and dismissed
judges, dismissed L.D. from his office for breaching the law and for
incompetence (shkelje të ligjës dhe paaftësi në detyrë).
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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.
2. L.D.’s appointment to and dismissal from the SAC

10. In response to a public call for expressions of interest issued by the
Peoples’ Advocate, on 3 February 2017 L.D. submitted an application
expressing his interest in, among other vacancies, the position of SAC judge.
In his application L.D. enumerated the main eligibility criteria for the position
and stated that he met all of them. In particular, he stated in his application
the following:
“... against me there has not been taken the disciplinary measure of dismissal from
office or any other disciplinary measure that is still in force, pursuant to the law
applicable at the time of [my] application [for the position of SAC judge].”
11. Following the establishment by the People’s Advocate of an ad hoc
commission that would review all applications received for positions on the
vetting bodies, on 13 February 2017 the said commission and the IMO
adopted a protocol on the method by which the compliance of candidates with
the statutory eligibility criteria would be evaluated. In so far as relevant, the
protocol provided that a self-declaration from the candidates would be
sufficient to consider that a candidate had not been “subjected to the
disciplinary measure of dismissal from office or any another disciplinary
measure that had been still in force at the time of applying” for a position on
one of the vetting bodies, as required by section 6(1)(dh) of the Vetting Act
(see paragraph 50 below).
12. Following a number of exchanges between the Peoples’ Advocate, the
IMO and Parliament, the Peoples’ Advocate ultimately forwarded to
Parliament a list of the candidates who met the statutory eligibility criteria.
The list included L.D.
13. On 2 June 2017 an ad hoc commission of Parliament held a hearing
during which it interviewed L.D. and other candidates for the vetting bodies.
One of the members of the commission asked L.D. whether he had been
dismissed or had resigned from his former position as judge of the District
Court of Tirana. L.D. answered that he had resigned.
14. By decision no. 82/2017 of 17 June 2017 Parliament confirmed en
bloc the list of members of the vetting bodies, L.D. being appointed to the
position of SAC judge.
15. On 17 January 2020, while the applicant’s re-evaluation proceedings
were ongoing before the SAC (see paragraphs 33-34 below), the applicant
lodged a criminal complaint in respect of L.D. The complaint referred to
L.D.’s dismissal in 1997 from his office as a judge of the District Court of
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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.
C. Criminal proceedings against L.D.
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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to the existence of a disciplinary measure of removal/dismissal from office imposed on

him.”
3. The Supreme Court’s judgment

27. On 26 October 2021 the Supreme Court rejected as inadmissible a
cassation appeal lodged by L.D. and in essence upheld the reasoning and
conclusions of the lower courts.
28. The Supreme Court stated that a previous dismissal from an office
disqualified a candidate from holding certain public functions and confirmed
that disciplinary measures for very serious breaches were not removed from
a judge’s record with the passage of time. The court further found that:
“69. ... [L.D.] deliberately provided false information in his application for the
position of judge with the Special Appeal Chamber, for which position he [was deemed]
qualified and [was later] appointed, precisely because of the untrue information that he
had provided in the application form. If the petitioner [L.D.] had disclosed in his
application his dismissal from his office in 1997 he would have risked being
disqualified under the law [from being considered] for the positions [on the vetting
bodies].
70. The failure of the relevant bodies under Law no. 84/2016 ... to verify the
conditions that must be met by candidates for positions [on] the re-evaluation bodies
does not absolve the applicant of responsibility for declaring false information in his
application.”
29. Further on, the Supreme Court stated:
“78. It is understandable that the Law on the transitional re-evaluation of judges and
prosecutors ... in setting out the criteria provided under Article 6, aimed to appoint ... to
re-evaluation institutions [people] who enjoyed high moral and professional integrity.”
30. One judge appended a dissenting opinion which argued that L.D.’s
application for the position of SAC judge was merely a private document
which could not be subject to forgery; he further submitted that, in any event,
L.D.’s defence that he had believed that the disciplinary measure had been
removed from his record was arguable, and that no criminal intent could
therefore be inferred from the circumstances of the case.
31. In the dissenting judge’s opinion, criminal courts were not competent
to make a final determination that L.D.’s dismissal in 1997 disqualified him
from holding the position of SAC judge; moreover, even assuming that the
1997 dismissal had disqualified L.D., his appointment as an SAC judge had
only been possible thanks to the failure of the People’s Advocate and
Parliament to verify whether he had fulfilled the relevant criteria (and not to
the application that L.D. had lodged with the People’s Advocate).
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II. THE VETTING PROCEEDINGS IN RELATION TO THE

APPLICANT
A. Proceedings before the Independent Qualification Commission
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.).
B. Proceedings before the SAC
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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36. Meanwhile, on 20 January 2020 the applicant lodged another request

with the SAC on the basis of the same facts and arguments as those on which
the first request had been based, whereby he requested that L.D. be excluded
from examining his case (“the second request”). The applicant also pointed
out that as a result of his criminal complaint against L.D. (see paragraph 15
above), the latter lacked impartiality to hear the applicant’s case. On
5 February 2020 the SAC, sitting as a different bench from that which was
examining the merits of the applicant’s re-evaluation process, refused the
second request on the same grounds as those set out in the previous paragraph
– namely, that the SAC did not have jurisdiction to examine the request in so
far as it related to events that had occurred prior to the appointment of the
SAC’s members. It also concluded that the applicant’s criminal complaint
against L.D. did not impact his impartiality to hear the case.
37. On 7 February 2020 the applicant lodged a constitutional complaint
with the Constitutional Court requesting that the court declare
unconstitutional Parliament’s decision appointing L.D. to the SAC
(see paragraph 14 above), as L.D. had not met the relevant eligibility criteria.
38. Subsequently, at a public hearing of 11 February 2020 before the
SAC, the applicant requested that the vetting proceedings against him be
stayed until the Constitutional Court had delivered a decision on his
complaint and until the criminal proceedings against L.D. (which at the time
were ongoing) had come to an end. The SAC refused the request.
39. On 27 February 2020 the SAC, after considering the parties’ written
submissions and undertaking a fresh reassessment of the evidence in the case
file, overturned the IQC’s decision and dismissed the applicant from his
office with immediate effect. The SAC held that, on the basis of a “financial
analysis” that it had conducted, the applicant had made an inaccurate and
insufficient declaration of the assets belonging to him and persons related to
him. It further found that, owing to a commercial agreement entered into by
the applicant and a petrol company, there had been a conflict of interest with
his position as sitting prosecutor that had undermined the public’s trust in the
justice system.
40. Two judges appended a concurring opinion to the SAC’s decision,
arguing that they disagreed with the weight that the majority had granted to
the applicant’s inaccurate declarations in respect of a car and a garage that he
had purchased in the course of his career.
C. Constitutional Court’s decision
41. In response to the applicant’s complaint (see paragraph 37 above), the

Constitutional Court adopted decision no. 62 of 29 April 2020 rejecting as
inadmissible the applicant’s challenge against L.D.’s appointment to the
SAC.
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42. In so far as the complaint had been based on paragraph (e) of

Article 131 § 1 of the Constitution, which provided the Constitutional
Court’s jurisdiction to verify the eligibility and appointment of officers of
constitutional bodies (see paragraph 45 below), the court held that individuals
did not have standing to initiate such a constitutional review. It accordingly
concluded that the applicant’s challenge against the appointment of a member
of the SAC was incompatible rationae personae with the Constitution.
43. In so far as the applicant had complained under paragraph (f) of
Article 131 § 1 of the Constitution (ibid.) that L.D.’s appointment to the SAC
in breach of domestic law had violated the applicant’s individual right to a
“tribunal established by law” in the course of the vetting proceedings, the
Constitutional Court dismissed the complaint, reasoning as follows:
“20. Returning to the present case, the [Constitutional Court’s] Bench notes that the
applicant alleges a violation of his right to a fair hearing by virtue of an act undertaken
by a public authority before the end of the proceedings before the SAC, and,
consequently, does not raise any claim against the final outcome of the [vetting]
process. He challenged ... the appointment [of L.D. to the SAC] and [requested] the
partial invalidation of the decision of the Parliament which appointed L. D. as a member
of the SAC.
21. The Constitutional Court has emphasised that the right to fair hearing, including
complaints related to a tribunal established by law, is guaranteed during a legal or
judicial process, in connection with the final result [“ne funksion të rezultatit
përfundimtar”] which generates concrete and direct consequences for applicants as
holders of procedural and substantive constitutional rights. The Bench considers that in
the process of transitional re-evaluation too, the procedural rights of the individuals
being re-evaluated should be guaranteed within the judicial process conducted by the
Special Appeal Chamber, according to the competencies assigned to them by the
Constitution and the law.
...
23. Furthermore, the Bench notes that the jurisdiction of the Constitutional Court in
reviewing the individual constitutional complaint of the applicant in respect of his re-
evaluation process as a prosecutor, is limited by the powers that the Constitution itself,
in its annex, has conferred to the re-evaluation bodies. Thus, Article 179/b, paragraph
2 of the Constitution provides that the re-evaluation process, which is carried out by the
IQC and the SAC, will be based on the principle of a fair hearing as well as respect for
the fundamental rights of the individuals being re-evaluated.
...
24. The Bench reiterates that the constitutional procedural rights [...], including the
right to a “tribunal established by law”, have been guaranteed by the Constitution to the
individuals being re-evaluated, by virtue of the judicial process carried out by the SAC
and, subsequently, by virtue of the possibility of exercising the right to complain to the
European Court of Human Rights. In view of the powers of the SAC to hear appeals
against the decisions of the IQC, the court has held that this [appeal] process includes a
review of the compatibility of the proceedings with the Constitution ... ”
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RELEVANT LEGAL FRAMEWORK AND PRACTICE

I. RELEVANT DOMESTIC LAW
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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48. Article F § 8 of the annex to the Constitution provides that persons

being vetted have the right to complain (ushtrojnë ankim) to the European
Court of Human Rights.
B. The Transitional Re-evaluation of Judges and Prosecutors Act

(Law no. 84/2016 – “the Vetting Act”)
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];”
C. Status of Judges and Prosecutors Act (Law no. 96/2016, as

amended)
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.
D. The 2008 Judiciary Act (Law no. 9877/2008 of 18 February 2008 on

the organisation and functioning of the judiciary, as amended - in
force until 22 November 2016)
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.”
E. Other relevant provisions
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.
II. RELEVANT DOMESTIC PRACTICE
The Constitutional Court’s case-law
59. By decision no. 59 of 23 December 2014 the Constitutional Court

rejected a complaint lodged by several members of parliament who had
sought, inter alia, that the court declare unconstitutional three decisions of
Parliament dismissing the director – and subsequently appointing a new
director – of the High Inspectorate for the Declaration and Audit of Assets
and Conflicts of Interest (an independent administrative body). The court
found, inter alia, that rather than being general regulatory acts the impugned
acts had been individual decisions relating to the dismissal of a public officer;
therefore, any assessment of their compatibility with the Constitution fell
under the jurisdiction of the regular administrative courts, before which
proceedings had indeed already been initiated by the interested party.
13
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

AS REGARDS THE RIGHT TO A TRIBUNAL ESTABLISHED BY
LAW ON ACCOUNT OF L.D.’S SITTING ON THE SPECIAL
APPEAL CHAMBER BENCH
60. The applicant complained under Article 6 § 1 of the Convention that

his civil rights and obligations had not been determined by a “tribunal
established by law”, given that L.D. (who had sat on the SAC bench that had
heard the applicant’s case) had been appointed to office in violation of
domestic law.
61. The relevant part of Article 6 § 1 of the Convention reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law.”
A. Admissibility
1. The parties’ submissions

62. The Government submitted that according to the well-established
case-law of the Constitutional Court (see paragraph 59 above), the
constitutionality of individual (non-regulatory) acts – including Parliament’s
decision to appoint the SAC member at issue in the applicant’s case – should
have been challenged in the regular administrative courts rather than the
Constitutional Court. Given that the applicant had failed to initiate such
proceedings, in the Government’s view, he had failed to exhaust the available
domestic remedies.
63. In addition, the Government stated that the applicant’s complaint was
manifestly ill-founded.
64. The applicant submitted that he had exhausted the available domestic
remedies by raising the issue of the unlawful appointment of judge L.D.
separately before, respectively, the SAC and the Constitutional Court, both
of which had declined to examine his allegations. He argued that the
administrative courts had no jurisdiction to rule on whether a judge had been
appointed to the SAC in accordance with the law and pointed out that the
constitutional case-law cited by the Government concerned a challenge
against the appointment of an officer to an administrative body, and was
therefore not relevant to the instant case.
2. The Court’s assessment

65. As a preliminary remark, the parties did not dispute, and the Court
agrees, that Article 6 § 1 of the Convention applicable under its civil head to
14
the proceedings in respect of the vetting of the applicant (see

Xhoxhaj v. Albania, no. 15227/19, § 288, 9 February 2021).
66. Turning to the exhaustion of domestic remedies, the Court reiterates
that the rule referred to in Article 35 § 1 of the Convention obliges those
seeking to bring a case against the State before an international judicial body
to use first the remedies provided by the national legal system, thus
dispensing States from answering before an international body for their acts
before they have had an opportunity to put matters right through their own
legal systems. In order to comply with the rule, normal recourse should be
had by an applicant to remedies that are available and sufficient to afford
redress in respect of the breaches alleged. The existence of the remedies in
question must be sufficiently certain not only in theory but in practice, failing
which they will lack the requisite accessibility and effectiveness
(see Vučković and Others v. Serbia (preliminary objection) [GC],
nos. 17135/11 and 29 others, § 70, 25 March 2014).
67. It is incumbent on the Government claiming non-exhaustion to satisfy
the Court that the remedy was an effective one, available in theory and in
practice at the relevant time. Once this burden has been satisfied, it falls to
the applicant to establish that the remedy advanced by the Government was
in fact exhausted, or was for some reason inadequate and ineffective in the
particular circumstances of the case, or that there existed special
circumstances absolving him or her from this requirement (ibid., § 77).
68. Turning to the present case, the Court notes that the Government did
not respond to the applicant’s specific contention that it was not for an
administrative court of first instance to rule on the lawfulness of the
appointment of a judge to the SAC, one of the highest courts in the country.
The Court shares the applicant’s doubts in this respect.
69. Be that as it may, the Court agrees with the applicant’s argument that
the case-law relied on by the Government does not appear to be relevant, as
it concerned the dismissal and appointment by Parliament of an officer of an
administrative body, whereas the applicant’s complaint concerned a judge of
the SAC, which is a judicial and constitutional body (see paragraph 59 above)
whose judges have the status of judges of the Constitutional Court (see
paragraph 47 above). Moreover, the Government did not cite any judgments
delivered by an administrative court of first instance that had served as an
effective remedy in situations comparable to that of the applicant.
70. Most importantly, the Court notes that the SAC and the Constitutional
Court – in which the applicant brought proceedings in respect of this matter
and which thus had the possibility to apply the allegedly well-established
case-law cited by the Government – did not refer to that jurisprudence or point
to the administrative court of first instance as a remedy to be used by the
applicant. Neither did they identify any non-exhaustion issue in respect of the
applicant’s actions.
15
71. On the contrary, one of the reasons referred to by the Constitutional

Court when rejecting the applicant’s complaint was that the applicant’s right
to a “tribunal established by law” was to be guaranteed in the course of vetting
proceedings conducted before and by the SAC (see §§ 21 and 24 of the
Constitutional Court’s judgment set out in paragraph 43 above), whose
exclusive jurisdiction in this respect removed the matter from the ordinary
jurisdiction of the general Constitutional Court. This conclusion reached by
the Constitutional Court places in doubt the Government’s stance that the
applicant’s complaint regarding his right to “a tribunal established by law”
fell within the jurisdiction of the administrative courts.
72. Accordingly, the Court is unable to follow the Government’s
contention that the administrative court of first instance was an effective
remedy in respect of the applicant’s challenge to L.D.’s appointment to the
SAC (see paragraph 67 above).
73. In view of the above, the Government’s non-exhaustion plea is
dismissed.
74. The Court notes that this complaint is neither manifestly ill-founded
nor inadmissible on any other grounds listed in Article 35 of the Convention.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions

(a) The applicant
75. The applicant submitted that the SAC bench that had heard his case
had not constituted a “tribunal established by law” within the meaning of
Article 6 § 1 of the Convention, as one of the judges, namely L.D., had not
fulfilled the statutory eligibility conditions to be appointed to the SAC as a
judge.
76. In particular, the applicant submitted that section 6(1) (dh) of the
Vetting Act had provided that candidates who had been previously dismissed
from an office could not be appointed as SAC judges; therefore, L.D. who
had been dismissed in 1997 from his office as a judge of the District Court of
Tirana had not fulfilled that condition and had consequently been appointed
in violation of the law.
77. Moreover, the applicant contended that L.D. had failed to fulfil a
number of other eligibility criteria relating to the length of his professional
experience, the average grade that he had achieved during his law studies, his
academic degrees and his command of the English language.
78. In view of the foregoing, the applicant maintained that the People’s
Advocate and Parliament should have screened candidates for the SAC more
carefully and should have ensured that all members of the SAC possessed a
high level of moral and professional integrity, given their power to decide on
16
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.
(b) The Government

79. The Government disputed the applicant’s assertion that there had been
a violation of the “tribunal established by law” requirement under
Article 6 § 1 of the Convention.
80. They argued that given that L.D. had concealed the fact that he had
not met the eligibility criteria set forth in section 6(1) (dh) of the Vetting Act,
the Peoples’ Advocate and IMO had had no reason to conduct a thorough
inquiry into his career history. Similarly, L.D. had concealed his previous
dismissal when asked specifically by the ad hoc Parliamentary commission
if he had ever been dismissed from any post; therefore, Parliament could not
be criticised for having appointed L.D. to the SAC. In the Government’s view
the circumstances prohibiting (fakti ndalues) L.D.’s appointment to the SAC
had only become known at a later stage and Parliament had not acted
arbitrarily or intentionally in appointing L.D. to the SAC.
81. The Government further argued that the present case should be
distinguished from the case of Guðmundur Andri Ástráðsson v. Iceland
([GC], no. 26374/18, 1 December 2020), as there had been no political
interference in the appointment of L.D. Moreover, they argued that, generally
speaking, the rules governing the appointment of L.D. to the SAC had been
complied with, whereas the breach alleged by the applicant had not been of
significant gravity; therefore, there had been no breach of any fundamental
rule concerning the procedure for appointing judges.
82. As to whether the applicant’s allegations had been addressed by the
domestic authorities, the Government referred to the requests lodged by the
applicant with the SAC (see paragraphs 35 and 36 above), his constitutional
and criminal complaints and the disciplinary proceedings against L.D.,
submitting that it was clear that the domestic authorities had duly addressed
the applicant’s allegations.
2. The Court’s assessment

(a) Regarding the effect of L.D.’s earlier dismissal from office on his subsequent
appointment to the SAC
(i) General principles
83. In its judgment in the case of Guðmundur Andri Ástráðsson (cited
above, § 218 et. seq.) the Grand Chamber of the Court clarified the scope of,
and the meaning to be given to, the concept of a “tribunal established by law”.
The Court analysed the individual components of that concept and considered
17
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
18
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;
19
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).
(ii) Application of the above-noted principles to the instant case

(α) Whether there was a manifest breach of the domestic law
94. In determining whether there was a breach of domestic law as a result
of the appointment of judge L.D. to the SAC, the Court must identify the
domestic authorities’ position in respect of this question. In this connection
the Court notes that the SAC and the Constitutional Court declined to
examine this issue (see paragraphs 35, 36 and 41 above), whereas the
disciplinary proceedings against L.D. were undertaken on the grounds that he
had been convicted of a criminal offence after his appointment to office (see
paragraph 16 above); therefore, those proceedings did not determine the
distinguishable question of whether L.D.’s initial appointment had been in
accordance with the law. As regards the criminal proceedings against L.D.,
those concerned the question of whether he had committed forgery in his
application for the position of SAC judge; again, this question is
distinguishable from the question of whether his appointment was lawful.
Admittedly, in the examination of the mens rea element of the forgery charge
against L.D. the domestic criminal courts made a number of statements on
whether L.D. had fulfilled the requirements of domestic law in respect of his
application for the position of SAC judge. However, it does not appear that
the ordinary courts, including the Supreme Court, had the power to pass
judgment on the lawfulness of the appointment (zgjedhshmerinë) of L.D.
who, as a SAC judge, had the status of a Constitutional Court judge.
Furthermore, those statements were limited to the question of L.D.’s criminal
liability. Accordingly, the Court considers that the question of whether there
had been a manifest breach of domestic law in the appointment of L.D. to the
SAC was not answered by domestic courts. The Court may nevertheless take
into consideration the contextual findings made by the domestic courts in this
respect.
95. In assessing the question of whether there was indeed a manifest
breach of domestic law the Court will take note of the following
circumstances, which were not disputed by the parties. Firstly, section 6(1)
(dh) of the Vetting Act provided that a candidate who had been subject to the
disciplinary measure of dismissal from office at the time of his application
for the position of SAC judge could not be appointed to that position (see
paragraph 50 above). Accordingly, the appointment to the SAC of a candidate
who failed to fulfil that condition would be contrary to domestic law.
Secondly, L.D. was subjected to the disciplinary measure of dismissal from
office in 1997 for a breach of the law and for incompetence (see paragraph 8
above).
20
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).
21
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.
22
105. As regards the Government’s argument that the authorities’

ignorance of L.D.’s dismissal in 1997 from his office as a judge of the District
Court of Tirana must be seen as excluding the possibility that they had
violated the applicant’s right to a “tribunal established by law”, the Court
notes that States have a general obligation to organise their legal systems so
as to ensure compliance with the requirements of Article 6 § 1 (see, mutatis
mutandis, Krastanov v. Bulgaria, no. 50222/99, § 74, 30 September 2004).
Therefore, it fell to the domestic authorities to employ all the means available
to them to ensure that judges of the SAC fulfilled the statutory requirements
for their position. In this connection, the Court agrees with the domestic
courts’ statements that the relevant authorities were under an obligation to
verify that L.D.’s application for the position of SAC judge complied with
the statutory requirements for his position (see paragraphs 26 and 28 above).
106. Furthermore, the Government did not refer to any difficulties in
verifying whether L.D. had been subjected to the disciplinary measure of
dismissal from office in the past. On the contrary, that information was a
matter of official record and had been cited no later than in 2016 in
disqualifying L.D. from the position of judge of the District Court of Tirana
(see paragraph 9 above). It is furthermore relevant that a member of the ad
hoc parliamentary committee asked L.D. a question specifically related to his
earlier departure from the judiciary (see paragraph 13 above).
107. As regards the argument that L.D.’s independence vis-à-vis the
domestic authorities is not in question, the Court notes that the requirements
that a tribunal be “established by law” and “independent” constitute stand-
alone rights. The fact that they are at times examined in conjunction with one
another on account of their close connection does not mean that possible
compliance with the “independence” requirement rules out a violation of the
requirement that a tribunal be “established by law” (see paragraph 87 above).
108. In view of the foregoing, the Court considers that the question of
judge L.D.’s fitness for office concerned a fundamental rule in respect of the
appointment of SAC judges.
(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.
23
110. In the request that he lodged on 17 January 2020 (see paragraph 35

above) while his vetting case was pending before the SAC, the applicant
provided that body with relevant factual and legal information supporting his
arguable claim that L.D. was not fit for judicial office owing to his failure to
meet the eligibility criteria at the time of his original appointment (see
paragraph 35 above). This notwithstanding, the Court has already found (see
paragraph 94 above) that no domestic authority examined – let alone
remedied – the question of whether L.D. had been appointed to the SAC in
accordance with domestic law. In particular, the domestic authorities did not
adopt a clear position as to whether L.D.’s term of office could be brought to
an end (and if so by which authority), or whether he could be excluded from
examining the applicant’s case on account of his failure to comply with the
relevant eligibility criteria.
111. In this connection the constitutional and disciplinary decisions were
incapable of remedying the applicant’s complaint, as those proceedings came
to an end after the applicant had been dismissed by a final and unappealable
judgment of the SAC.
112. The only decision that was delivered before the applicant’s dismissal
was that of the SAC, which on 5 February 2020 declined to examine the
applicant’s requests for the exclusion of L.D. from the panel hearing his case
on the grounds that it lacked jurisdiction to consider questions related to his
appointment to that office (see paragraph 36 above). The SAC’s approach
appears to be inconsistent with the Constitutional Court’s subsequent
decision finding that it was for the SAC, as a separate chamber of the
Constitutional Court, to ensure compliance with the applicant’s right to a
tribunal established by law. Lastly, in its decision dismissing L.D. from his
office, the Disciplinary Commission of the SAC found that he had the status
of a Constitutional Court judge, and was liable to be dismissed from office
under the same conditions as those that applied to a Constitutional Court
judge under Article 128 § 2 (b) of the Constitution (see paragraph 44 above).
However, the SAC appears to have deemed, for reasons not articulated in its
decision of 5 February 2020, that the related Article 127 § 1 (d) of the
Constitution – which provides for the termination of the term (removal from
office) of a Constitutional Court judge on the grounds that he or she does not
comply with the statutory eligibility requirements (ibid.) – was not applicable
to SAC judges.
113. Finally, an irregularity in the appointment procedure of a judge may
not necessarily be open to a challenge by an individual relying on the
“tribunal established by law” right in an indefinite or unqualified manner.
With the passage of time, the preservation of legal certainty and the security
of judicial tenure will carry increasing weight in relation to the individual
litigant’s right to a “tribunal established by law” in the balancing exercise that
must be carried out (see Guðmundur Andri Ástráðsson, cited above, §§ 252
24
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).
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
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
25
applicant’s dismissal was in violation of his right to private life (see

paragraph 127 below).
121. In this connection, the Court reiterates that where a violation of the
Convention is alleged to have been committed by the highest court or
authority, the application of Article 13 is subject to an implied
limitation since it cannot be construed as requiring that special bodies be set
up for the purpose of examining complaints against decisions by the highest
courts (see Stoyanova-Tsakova v. Bulgaria, no. 17967/03, § 32,
25 June 2009).
122. Turning to the present case, the Court notes that the SAC is the court
of last resort in respect of vetting proceedings. It follows that this complaint
is manifestly ill-founded and must be rejected, in accordance with Article 35
§§ 3 (a) and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
123. The applicant lodged a number of additional complaints under

Article 6 § 1 of the Convention.
124. In the first place, he complained that the SAC had not been a tribunal
established by law on account of the additional non-compliance of judge
A.H.’s appointment with the statutory eligibility criteria. In particular, in the
applicant’s view, judge A.H. lacked the required length of professional
experience, had achieved an average grade of only eight out of ten during his
academic studies, had not possessed any academic titles, had not had any
study experience outside Albania and had not had a very good command of
the English language, as required by law.
125. Secondly, the applicant complained that judges L.D. and A.H. had
lacked the necessary impartiality to hear the applicant’s case as he had
requested that their terms of office be terminated and had lodged a criminal
complaint against L.D.
126. Thirdly, the applicant also complained that the proceedings before
the SAC had been unfair owing to that court’s failure to disclose to the
applicant a copy of the “financial analysis” on which it had relied to dismiss
him and which had amounted to a breach of the principle of adversarial
proceedings.
127. Lastly, relying on his right to respect for his private life under Article
8 of the Convention, the applicant alleged that the SAC’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.
128. The Government contested the above complaints and argued that
there had been no violation of those provisions of the Convention.
129. 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
26
established by law (see paragraph 116 above), the Court decides to dispense
with the examination of the admissibility and merits of these complaints.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
130. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the
injured party.”
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.
B. Costs and expenses
136. The applicant did not submit any claims for costs and expenses. The
Court therefore does not make an award in this respect.
V. APPLICATION OF ARTICLE 46 OF THE CONVENTION
137. Article 46 of the Convention provides:

“1. The High Contracting Parties undertake to abide by the final judgment of the
Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers,
which shall supervise its execution.”
27
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,
28
§ 43, 11 July 2006; and Zeynalov v. Azerbaijan, no. 31848/07, § 41,

30 May 2013).
142. In other cases the Court has left it to the discretion of the domestic
authorities as to whether to reopen proceedings (see, for example, Chim and
Przywieczerski v. Poland, nos. 36661/07 and 38433/07, § 219, 12 April 2018,
and Dolińska-Ficek and Ozimek, cited above, § 368) or has endorsed
arrangements made by them aimed at the reconciliation of respect for
individuals’ rights under Article 6 § 1 of the Convention with the principles
of legal certainty, respect for res judicata and other particular considerations
related to the circumstances at hand (see Advance Pharma sp. z o.o, cited
above, §§ 127 and 365).
143. Lastly, following the Court’s judgment in the case of Guðmundur
Andri Ástráðsson (cited above), the Court decided under Article 37 § 1 (c) of
the Convention to strike out of its list of cases two similar applications against
Iceland on the grounds that the respondent Government had acknowledged
the violation complained of and that there existed a realistic possibility that
the domestic proceedings would be reopened (see Friðjón Björgvin
Gunnarsson v. Iceland (dec.), no. 48281/18, §§ 11-12, 2 June 2022, and
Haukur Sigurbjörn Magnússon v. Iceland (dec.), no. 6696/19, §§ 11-12,
2 June 2022).
B. Application of those principles to the present case
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
29
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.
FOR THESE REASONS, THE COURT
1. Declares, unanimously, the complaint under Article 6 § 1 of the

Convention concerning the applicant’s right to a “tribunal established by
law” admissible and the complaint under Article 13 of the Convention
concerning the lack of an effective remedy against the decision of the SAC
inadmissible;
2. Holds, unanimously, that there has been a violation of Article 6 § 1 of the

Convention as regards the applicant’s right to a “tribunal established by
law”;
30
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;
4. Dismisses, unanimously, the applicant’s claim for just satisfaction in

respect of pecuniary damage;
5. Holds, by six votes to one, that the finding of a violation constitutes

sufficient just satisfaction in respect of any non-pecuniary damage.
Done in English, and notified in writing on 4 October 2022, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Georges Ravarani

Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the

Rules of Court, the separate opinion of Judge Serghides is annexed to this
judgment.
G.R.
M.B.
31
BESNIK CANI v. ALBANIA JUDGMENT – SEPARATE OPINION
PARTLY CONCURRING AND PARTLY DISSENTING

OPINION OF JUDGE SERGHIDES
I. Introduction
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.
II. Consequences of finding that there is not “a tribunal established

by law”
3. In particular, I respectfully disagree with paragraph 129 of the

judgment and the corresponding point 3 of its operative provisions, namely
that because of the finding that there was not “a tribunal established by law”,
there is no need to examine the remaining complaints under Article 6 § 1 and
Article 8 of the Convention. In my view, after the finding that there was not
“a tribunal established by law”, the alleged “remaining complaints” became
immediately and automatically devoid of object and existence ex tunc and,
therefore, they should have been rejected as inadmissible ratione materiae,
by virtue of Article 35 §§ 3 (a) and 4 of the Convention. The lack of “a
tribunal established by law” had two kinds of consequences regarding
Article 6, firstly rendering the whole trial unfair, and secondly, rendering any
other complaints under this provision ratione materiae inadmissible. On the
other hand, the lack of any other guarantees of Article 6 may render the whole
trial unfair but cannot render any other complaint under Article 6 ratione
materiae inadmissible.
4. Indeed, the approach of the judgment in the present case is similar to
the judgment in Guðmundur Andri Ástráðsson v. Iceland ([GC],
no. 26374/18, § 295 and point 2 of the operative part, 1 December 2020),
where, after finding that there had been no “tribunal established by law” – a
guarantee provided in Article 6 – the Court decided by a majority that there
was “no need to examine the remaining complaints under Article 6 § 1”, that
32
is, the complaints alleging the lack of independence and impartiality of a

tribunal.
5. However, in my partly dissenting opinion in Guðmundur Andri
Ástráðsson, I disagreed with the majority that there was no need to examine
the remaining complaints and I proposed that, after the finding that there was
no tribunal established by law, the alleged “remaining complaints”, namely
those concerning the guarantees of an independent and impartial tribunal,
became immediately and automatically devoid of object and existence ex tunc
and, therefore, they should have been rejected as inadmissible ratione
materiae, by virtue of Article 35 §§ 3 (a) and 4 of the Convention.1 I also
argued2 that when there is no “tribunal”, as was the finding of the Court in
that case, because of the absence of a tribunal established by law, there is no
noun and thus no object to which the adjectives “independent” and
“impartial” can correspond, with the result that these adjectives become
devoid of object and existence. All requirements of the right to a fair trial
specified by Article 6 § 1 are indispensable, and without them that right
cannot be secured. Nevertheless, the only free-standing requirement of
Article 6 § 1 is that there must be a lawful tribunal. This requirement is a
central feature of a fair trial as it refers to the very essence of the relevant
right. All other requirements of Article 6 § 1 presuppose the fulfilment of this
central demand, the establishment of a tribunal by law. In other words, the
“independence” and “impartiality” requirements/guarantees are intrinsic and
inseparable qualities related to the very existence of “a tribunal established
by law”. It is impossible to examine the qualities of a tribunal that does not
exist, just as it is impossible to examine the qualities of a non-existent person
or building. Therefore, any hope that a tribunal is independent and impartial
will hinge on the fact that it is a tribunal established by law in the first place.
The former qualities are dependent on the latter and cannot be left in a
vacuum. Regrettably, the Court in Guðmundur Andri Ástráðsson, by finding
that there was no need to examine the complaints of a lack of independence
and impartiality, gave the impression that it was referring to the merits of
those complaints, thus suggesting that they remained admissible. However,
as submitted in this opinion, these complaints had become inadmissible and
should have been rejected as such.
6. I had the opportunity to further explain and elaborate on the approach
which I followed in Guðmundur Andri Ástráðsson and in the present case, in
my dissenting opinion in Angerjärv and Greinoman v. Estonia
(nos. 16358/18 and 34964/18, 4 October 2022 – thus, a judgment delivered
on the same date as the present judgment). In brief, I submitted in that opinion
that there should be a hierarchy of guarantees in Article 6 and that the
guarantee of “a tribunal established by law” should be placed at the apex of
1 See paragraph 4 of the opinion.

2 Ibid., at paragraph 5.
33
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,
3 See paragraph 28 of that opinion.

4 See paragraphs 30-31 of that opinion.
34
and the Court should not simply have said that it was not necessary to
examine the remaining complaints.
III. Finding a violation is not in itself adequate just satisfaction
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
35
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

European Court of Human Rights (Besnik Cani vs. Albania)

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THIRD SECTION

CASE OF BESNIK CANI v. ALBANIA

(Application no. 37474/20)

Art 6 § 1 (civil) ● Tribunal established by law • Arguable claim of manifest

In the case of Besnik Cani v. Albania,

I. BACKGROUND TO THE VETTING PROCEEDINGS IN ALBANIA

5. In 2016 Albania embarked on a far-reaching justice system reform,

B. Appointments and dismissals of judge L.D.

1. Appointment and dismissal as a judge of the District Court of Tirana

2. L.D.’s appointment to and dismissal from the SAC

C. Criminal proceedings against L.D.

to the existence of a disciplinary measure of removal/dismissal from office imposed on

3. The Supreme Court’s judgment

II. THE VETTING PROCEEDINGS IN RELATION TO THE

A. Proceedings before the Independent Qualification Commission

B. Proceedings before the SAC

36. Meanwhile, on 20 January 2020 the applicant lodged another request

C. Constitutional Court’s decision

41. In response to the applicant’s complaint (see paragraph 37 above), the

42. In so far as the complaint had been based on paragraph (e) of

RELEVANT LEGAL FRAMEWORK AND PRACTICE

48. Article F § 8 of the annex to the Constitution provides that persons

B. The Transitional Re-evaluation of Judges and Prosecutors Act

C. Status of Judges and Prosecutors Act (Law no. 96/2016, as

D. The 2008 Judiciary Act (Law no. 9877/2008 of 18 February 2008 on

E. Other relevant provisions

II. RELEVANT DOMESTIC PRACTICE

The Constitutional Court’s case-law

59. By decision no. 59 of 23 December 2014 the Constitutional Court

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

60. The applicant complained under Article 6 § 1 of the Convention that

1. The parties’ submissions

2. The Court’s assessment

the proceedings in respect of the vetting of the applicant (see

71. On the contrary, one of the reasons referred to by the Constitutional

1. The parties’ submissions

(b) The Government

2. The Court’s assessment

(ii) Application of the above-noted principles to the instant case

105. As regards the Government’s argument that the authorities’

110. In the request that he lodged on 17 January 2020 (see paragraph 35

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

applicant’s dismissal was in violation of his right to private life (see

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

123. The applicant lodged a number of additional complaints under

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

130. Article 41 of the Convention provides:

B. Costs and expenses

V. APPLICATION OF ARTICLE 46 OF THE CONVENTION

137. Article 46 of the Convention provides:

§ 43, 11 July 2006; and Zeynalov v. Azerbaijan, no. 31848/07, § 41,

B. Application of those principles to the present case

FOR THESE REASONS, THE COURT

1. Declares, unanimously, the complaint under Article 6 § 1 of the

2. Holds, unanimously, that there has been a violation of Article 6 § 1 of the

4. Dismisses, unanimously, the applicant’s claim for just satisfaction in

5. Holds, by six votes to one, that the finding of a violation constitutes

Done in English, and notified in writing on 4 October 2022, pursuant to

Milan Blaško Georges Ravarani

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the

PARTLY CONCURRING AND PARTLY DISSENTING

II. Consequences of finding that there is not “a tribunal established