"It does not implement the court decision on...", BIRN "exposes" the KPK: They chose the luxury resort in 2021 for the 4-year work analysis

(Roland Ilia and Pamela Qirko)

In September 2021, the Independent Qualification Commission chose the luxury resort "Marina Bay" on the coast of Vlora as the destination to develop a 4-year analysis of the work as well as the institution's challenges until the end of the mandate. The event took place on September 30, but the 12 KPK commissioners and three staff members were accommodated in the hotel for two nights thanks to the generosity of a private company that covered accommodation, food, conference room rental and other costs. of activity.

KPK kept the donor's name secret in violation of the "Right to Information" law. But almost three years later, the key vetting institution continues to insist on the secrecy of the private sponsor's name, despite a final ruling forcing it to make it public.

The Independent Qualification Commission is a constitutional institution, created within the framework of the Justice Reform for the vetting of judges and prosecutors with the final goal of restoring public confidence in justice. Throughout his mandate, hundreds of magistrates have been accountable to the KPK and have been penalized with dismissal for gifts or sponsorships received from third parties, which have been assessed in light of a potential conflict or apparent interest. KPK members themselves refuse to submit to the same standard.

The transparency legal saga began with a BIRN Right to Information request and a decision by the Right to Information Commissioner on December 7, 2021, ordering the KPK to make available to BIRN a full copy of the sponsorship agreement.

KPK refused to implement the decision and challenged it in the Administrative Court of Tirana, where it received a favorable decision. In its lawsuit, the Commission claimed that making the sponsor public would harm national security, the vetting process as well as the image of the KPK and its international partners.

The Commissioner for the Right to Information as a defendant and BIRN as a third party in the process appealed to the Administrative Court of Appeal, which overturned the decision of the first instance as unfounded.

In the decision dated January 23, 2024, the Administrative Court of Appeals assesses that the decision of the first instance is a reflection of non-respect of the basic principles of the development of a judicial process.

The appeal also points out in the decision that compliance with the contractual co-confidential clauses does not appear to constitute a limitation provided for in the sponsorship agreement, but was subsequently interpreted as such by the Commission.

Next, the Appeal notes that the Administrative Court of the First Instance has considered the observance of confidentiality clauses to be of public interest, despite the fact that the legislator has provided the public interest as an exception to the right to limit information.

The appeal also refutes the claim that the disclosure of the data of the sponsor of the activity of the KPK constitutes the simultaneous disclosure of important issues related to the activity of this institution in the future, its long-term and short-term strategies and plans.

"This conclusion could have been logically and legally acceptable, only if the plaintiff, during the trial at first instance, had documented the fact that the sponsor of the activity organized by her in a hotel in the south of the country, was sui generis author of the formula for the success of the further activity of the KPK...," the decision states.

Also referring to the jurisprudence of the European Court of Human Rights, Apeli also emphasized the double standard followed by the KPK.

"At a time when this [public] interest is not found to have suffered any harm from the systematic publication of the data of the judges of the Republic of Albania for several years, without excluding their accommodation in hotels, it has even been considered that it has served as an instrument for to restore the public's trust in justice," states the appeal and asks the question: "on what basis the standard of transparency, already applied during the vetting process of judges in office, should not be applied to quasi-judge commissioners as well?".

The decision, still unexecuted

After clarifying the decision of the Administrative Court of Appeal, BIRN addressed the Independent Qualification Commission with a request for voluntary execution and making available the sponsorship agreement, with complete data.

But the KPK ignored this request and in a response to BIRN described the legislation on which the execution of court decisions is based. Subsequently, the Commission submitted an appeal to the Supreme Court as well as a request for the suspension of the execution of the Appeal decision, until the case is examined at the third level of the judiciary.

On April 30, the Supreme Court decided not to accept the appeal, upholding the decision that compels the KPK to reveal the name of the sponsor.

Two other requests for information addressed to the Independent Qualification Commission for making available the full agreement and the Commissioner for the Right to Information and Protection of Personal Data regarding the progress of the decision execution procedures, have remained unanswered even though it is exceeded the legal deadline. Likewise, the KPK did not respond until the publication of this article to a BIRN request for comment regarding the reasons for not making the requested document available./Reporter.al