Published on 12 July 2021

THIRD SECTION

Application no. 37474/20 Besnik CANI against Albania lodged on 25 August 2020 c ommunicated on 22 June 2021

STATEMENT OF FACTS

The applicant, Mr Besnik Cani , is an Albanian national, who was born in 1970 and lives in Tirana. He is represented before the Court by Mr E. Halimi , a lawyer practising in Tirana.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was appointed to the post of prosecutor in 2003. Upon the entry into force of the Vetting Act in 2016 and his candidature to become a member of the High Prosecutorial Council (“ the HPC”), the applicant was included on a priority list of persons to be vetted.

On 27 November 2018 the Independent Qualification Commission (“IQC”) confirmed the applicant in his position. The IQC, however, decided to refer four matters to the relevant authorities for further investigation into whether the applicant had committed a disciplinary breach. Following the IQC decision, on 11 December 2018 the applicant was elected a member of the HPC.

In the meantime, the Public Commissioner, who represents the public interest, filed an appeal against the IQC decision, including the four matters which had been referred to the relevant authorities. On 27 February 2020 the Special Appeal Chamber (“ the SAC”), after holding a public hearing and making an assessment of the parties ’ written submissions and pleadings as well as a fresh reassessment of the evidence in the case file, quashed the IQC decision and dismissed the applicant from office with immediate effect. The SAC held that, on the basis of its financial analysis, the applicant had made inaccurate and insufficient declaration of assets belonging to him and related persons. It further decided that, on the basis of a lease agreement entered into between the applicant and a petrol company, there was a conflict of interest which had undermined the public trust in the justice system.

On 4 March 2020 the applicant ’ s term of office as a member of the HPC was put to an end.

(a) Procedural requests to the SAC

On 17 January 2020, while the proceedings were pending before the SAC, the applicant, alleging that the election of two SAC members, namely L.D. and A.H., had not complied with the statutory eligibility requirements, requested that the SAC end their term of office (“the first request”).

In addition, on 20 January 2020 the applicant made another request that the SAC exclude those two members from examining his case (“the second request”).

On 3 February 2020 the President of the SAC informed the applicant that the SAC was not competent and it lacked jurisdiction to examine the first request in so far as it related to events which had occurred prior to the election of its members ( nuk ka per kompetencë dhe juridiksion shqyrtimin e kërkeses suaj ... pasi pretendimet tuaja i përksasin periudhës përpara emërimit të tyre në funksionin e anëtarit të Kolegjit ...) .

On 5 February 2020 the SAC rejected the applicant ’ s second request stating that the first request and the criminal complaint against the SAC members (see below) did not give rise to any circumstances pointing to a lack of impartiality on the SAC members or the existence of a conflict of interest proscribed by national law. The SAC further stated that, in so far as the applicant complained about a breach of his right to be heard by a tribunal established by law, it was not competent and lacked jurisdiction to determine any questions pertaining to the compliance of their election with the statutory eligibility criteria and the end of their term of office.

(b) Constitutional complaints

Following the SAC ’ s rejection of his requests, on 7 February 2020 the applicant filed two constitutional complaints with the Constitutional Court requesting that the court verify the compliance of the two SAC members ’ election with the statutory eligibility criteria, and partially repeal the parliament ’ s decision regarding their election. In response, on 29 and 30 April 2020 the Constitutional Court held that the applicant did not have legal standing to challenge the election of the SAC members under Article 131 § 1 (e) of the Constitution. It further held that the applicant did not have legal standing and the Constitutional Court had no competence to hear constitutional complaints challenging the election of SAC members under Article 131 § 1 (f) of the Constitution, noting that the right to “a tribunal established by law” was to be guaranteed by the vetting bodies in the course of proceedings carried out before them. It thus declared both constitutional complaints inadmissible.

(c) The criminal complaint

In addition to making the first request on 17 January 2020 (see above), the applicant filed a criminal complaint with the prosecutor ’ s office against corruption and organised crime against L.D. on the same date (“the criminal complaint”).

On 23 July 2020 the prosecutor ’ s office concluded the investigations finding that there was proof beyond reasonable doubt that L.D. had committed the criminal offence of forgery of documents ( fallsifikim te dokumenteve ) by failing to disclose a serious disciplinary measure imposed on him in 2001 during the application and interview process for the position of member of the SAC.

On 24 July 2020 the Appeal Chamber ordered L.D. ’ s suspension from office.

On 1 December 2020 the Anti-Corruption and Organised Crime Court of First Instance found L.D. guilty of forgery of documents and sentenced him to six months ’ imprisonment, converted into twelve months ’ probation. This decision was upheld on appeal on 8 March 2021.

The relevant domestic law and practice has been set out in Xhoxhaj v. Albania , no. 15227/19, §§ 93-209, 9 February 2021.

COMPLAINTS

The applicant complains that there was a breach of Article 6 § 1 of the Convention because ( i ) the SAC was not a tribunal established by law on account of the non-compliance of L.D. and A.H. ’ s election with the statutory eligibility criteria, (ii) the SAC was not impartial owing to the participation of L.D. and A.H., (iii) the proceedings before the SAC were unfair owing to a breach of the principle of adversarial proceedings in that the SAC did not disclose a copy of its financial analysis to the applicant.

Furthermore, the applicant alleges that there was a breach of Article 8 of the Convention as a result of his dismissal from work and the SAC ’ s findings that he had undermined the public trust in the justice system. Lastly, he claims that there was a breach of Article 13 as there was no domestic remedy available to him to challenge the dismissal from office.

QUESTIONS O THE PARTIES

1. Was the Special Appeal Chamber (“SAC”) in the applicant ’ s case a “tribunal established by law” within the meaning of Article 6 § 1 (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 243 ‑ 90, 1 December 2020)? In particular:

(a) Was the election of L.D. and A.H. by parliament in breach of the eligibility criteria laid down in the applicable domestic law for the SAC members (see Article C of the Annex to the Constitution and sections 6-11 of the Vetting Act) ?

(b) If so, did the breach pertain to a fundamental rule of the procedure for electing the SAC members as to be capable of infringing the applicant ’ s right to a “tribunal established by law”?

(c) If so, did the domestic courts provide an effective review and remedy as to the legal consequences of the alleged breach of a fundamental rule in the election of L.D. or A.H.? In particular:

( i ) Did domestic law provide an effective remedy to the applicant in this respect?

(ii) If so, which body was empowered to decide on the potential ineligibility of the SAC members and/or their ability to hear the applicant ’ s case?

(iii) Were the domestic courts ’ decisions consistent as to their findings about the authority which was to decide on the potential ineligibility of the SAC members (see, in particular, the SAC decision of 5 February 2020 rejecting the applicant ’ s objection to the participation of L.D. and A.H. in hearing his case, the Constitutional Court ’ s decisions of 29 and 30 April 2020 dismissing the applicant ’ s constitutional complaint about the L.D. and A.H. ’ s alleged failure to meet the statutory eligibility criteria , and the SAC decision of 24 July 2020 suspending L.D. from office )?

2. Was the SAC impartial in the applicant ’ s case? In particular, did the participation of L.D. and A.H. give rise to objectively justified fears as to the SAC ’ s impartiality (see, mutatis mutandis , Kleyn and Others v. the Netherlands [GC], no. 39343/98 and 3 others, § 194, ECHR 2003 ‑ VI; and Micallef v. Malta [GC], no. 17056/06, §§ 93-99, ECHR 2009)?

3. Did the applicant have a fair hearing in the proceedings before the SAC? In particular, was the applicant given the opportunity to challenge the evidence in the case file, notably the financial analysis carried out by the SAC?

4. Has there been a breach of Article 8 of the Convention on account of the applicant ’ s dismissal from office (see Xhoxhaj v. Albania , no. 15227/19, §§ 358-414, 9 February 2021)? In particular:

(a) Was the interference in accordance with the domestic law? In particular, was the SAC ’ s findings that “the applicant had undermined the public trust in the justice system” foreseeable in the circumstances of the present case (see Xhoxhaj , cited above, §§ 384-88)?

(b) Was the applicant ’ s dismissal from work proportionate to the legitimate aims pursued (see, amongst other authorities, Özpınar v. Turkey , no. 20999/04, §§ 49-79, 19 October 2010; and Ivanovski v. the former Yugoslav Republic of Macedonia , no. 29908/11, § 176-88, 21 January 2016)?

5. Has there been a breach of Article 13 of the Convention as regards the applicant ’ s dismissal from office by the SAC?

6. Without prejudice to any of the above questions, do Articles 494-498/a of the Code of Civil Procedure or any other equivalent domestic provisions apply to a request for revision of a final decision given by the vetting bodies? If so, which body will examine such a request for revision?