Dismissal of a court judge due to non-justification and concealment of her property. The Court did not acquit her!
JUDGMENT
Xhoxhaj v. Albania 09.02.2021 (app. no. 15227/19)
SUMMARY
The case concerned a Constitutional Court judge who had been dismissed from office following the
outcome of proceedings commenced in relation to her, as part of an exceptional process for the reevaluation of suitability for office of all judges and prosecutors in the country, otherwise known as
the vetting process. The applicant’s case was examined by the vetting bodies and her dismissal was
confirmed in private by the Appeal Chamber.
The Court found in particular that there had been no violation of Article 6 § 1 as the vetting bodies
had been independent and impartial, the proceedings had been fair, holding a public hearing before
the Appeal Chamber had not been strictly required, and the principle of legal certainty had not been
breached.
The Court furthermore considered that the dismissal from office had been proportionate and that
the statutory lifetime ban imposed on the applicant on rejoining the justice system on the grounds
of serious ethical violations had been consistent with ensuring the integrity of judicial office and
public trust in the justice system, and thus had not breached her rights under Article 8.
PROVISION
Article 6par. 1
Article 8
PRINCIPAL FACTS
The applicant, Altina Xhoxhaj, is an Albanian national who was born in 1970 and lives in New York
(United States).
Background
Over a number of years, surveys in Albania showed widespread public concern about the level of
perceived corruption in the justice system. Among other things, kickbacks for judicial appointments,
bribes to prosecutors to dismiss cases, and judges taking bribes to delay hearings or favour certain
parties were believed to be widespread.
In 2016 the Albanian Parliament amended the Constitution and passed the Transitional Reevaluation of Judges and Prosecutors Act (otherwise referred to as the “Vetting Act”) to enable reform. All judges and prosecutors would be subject to vetting by the newly established
Independent Qualification Commission (IQC) at first instance and the Appeal Chamber on appeal.
Vetting would consist of re-evaluation of three criteria: an evaluation of assets owned by the person
to be vetted and his or her immediate family members, an integrity background check regarding
possible links to organised crime and an evaluation of professional competence.
The Venice Commission gave opinions on both the constitutional amendments and the Vetting Act
stating that the vetting of judges and prosecutors was justified and necessary for Albania “to protect
itself from the scourge of corruption which, if not addressed, could completely destroy [the] judicial
system”. The Albanian Constitutional Court also ruled in favour of the constitutionality of the Vetting
Act.
Ms Xhoxhaj’s case
In 1995 the applicant was appointed as a judge at the Tirana District Court and later served as a
member of the High Council of Justice. In 2010 she was elected a judge at the Constitutional Court
for a nine-year term. From 2003, she and her partner, who was also a public official, declared their
assets annually. In 2016 she filed three separate declarations, namely a declaration of assets, an
integrity and background declaration and a professional self-appraisal form, in accordance with the
Vetting Act. As regards the vetting declaration of assets, the applicant disclosed, among other things,
that she co-owned a flat measuring 101 sq. m and was the holder of certain foreign bank accounts.
In November 2017 an IQC panel was formed, which launched an investigation in respect of the
applicant’s declarations owing to her status as a Constitutional Court judge. In March 2018 the IQC
informed the applicant of its preliminary findings, pointing to inconsistencies identified in relation to
some of the applicant’s assets and her allegedly unjustified liquid assets in certain years. Also, a
member of the public complained of a conflict of interest involving her and her father, as a result of
which she did not recuse herself from the examination of a constitutional petition lodged by that
individual. In accordance with the law, the burden of proof switched to her to justify the lawfulness
of her assets, and she had to provide explanations regarding these discrepancies. The applicant
submitted extensive written and oral arguments at a public hearing.
On 4 June 2018 the IQC gave its decision, finding that, in respect of the flat measuring 101 sq. m, it
had not been proven that the applicant and her partner had had sufficient lawful income to acquire
that asset. Also, she had failed to disclose truthfully the source of income used to acquire it and had
failed to disclose that asset over a number of years in her assets declarations. In addition, there had
been a lack of legal supporting documents justifying the lawfulness of the source of income used.
The IQC further held, amongst other things, that the applicant had failed to disclose her conflict of
interest and recuse herself from the constitutional proceedings of which a member of the public had
complained. Her dismissal from judicial office was ordered owing to these breaches.
The applicant appealed to the Appeal Chamber, submitting extensive arguments, in particular that
her dismissal had been disproportionate and that the vetting proceedings had been, among other
things, unfair, impartial and in breach of the law. The appeal was examined in private. The Appeal
Chamber made extensive findings concerning the procedure before the vetting bodies and the reevaluation criteria. As regards the evaluation of assets, it overturned some of the IQC’s findings in respect of some of them, but upheld the finding that the applicant and her partner had not had
sufficient income to buy the flat measuring 101 sq. m and, and that she had made a false declaration
and concealed that asset for a number of years. As regards the unjustified liquid assets in certain
years, the Appeal Chamber stated that “the applicant [had] not convincingly explain[ed] the lawful
source of these monetary amounts; she [had] attempt[ed] to conceal and present the liquid assets
inaccurately; and, she and [her partner] ha[d] not justified the lawfulness of the income for these
monetary amounts”. The Appeal Chamber further found that her partner had not disclosed a cash
amount over the years, thus acting in breach of the law, and that she had not disclosed her foreign
bank accounts in the annual declarations of assets. Lastly, as regards the evaluation of professional
competence, the applicant’s failure to recuse herself from the constitutional proceedings was found
to have undermined public trust in the justice system. The decision to dismiss the applicant from
office was upheld and it became final.
Relying on Article 6 (right to a fair trial) of the European Convention, the applicant complained that
the vetting bodies had lacked independence and impartiality, in particular its members’ lacking the
requisite professionalism and experience, having been appointed without any involvement of the
judiciary; and the bodies had framed the “accusation” and decided on the merits of the
“accusation”. She also complained under Article 6 § 1 of the Convention of the unfairness of the
proceedings in her case for a number of reasons.
Relying on Article 8 (right to respect for private and family life), the applicant complained that her
dismissal had been arbitrary.
THE DECISION OF THE COURT…
Article 6 § 1
The European Commission representing the European Union made submissions as a third-party
intervenor in the case.
1. Compliance with the principle of “an independent and impartial tribunal established by law”
The Court, having firstly found in favour of the applicability of Article 6 solely under its civil limb,
considered that, having regard to the sufficiently clear legal basis (that is to say the Constitution and
the Vetting Act) which provided for the setting up of the IQC and the Appeal Chamber, their
exclusive jurisdiction and competence to carry out the transitional re-evaluation of judges,
prosecutors, legal advisors and assistants as well as their formation in the applicant’s case, the
vetting bodies had been set up and composed in a legitimate way and had been thus “tribunal[s]
established by law”.
The Court saw no evidence of a lack of independence on the part of the IQC or the Appeal Chamber.
It did not call into question the manner in which the members of the vetting bodies had been
appointed, as their appointment had been in accordance with the procedure prescribed by law. The
material in the case file showed that, once appointed, they had not been subject to any pressure by
the executive during the examination of the applicant’s case. That the members of the vetting
bodies had not been drawn from the corps of serving professional judges had been consistent with
the spirit and goal of the vetting process, specifically in an attempt to avoid any individual conflicts
of interest and to ensure public confidence in the process. The fixed duration of their terms of office
was understandable given the extraordinary nature of the vetting process. The Court was satisfied
that the domestic legislation had provided guarantees for their irremovability and for their proper
functioning.
Regarding impartiality, the Court noted that there had been no confusion of roles for the IQC: there
was a statutory obligation to open the investigation which was not dependant on the IQC bringing
any charges of misconduct against the applicant; its preliminary findings had been based on the
available information without the benefit of the applicant’s defence; and it had taken its final
decision on the applicant’s disciplinary liability on the basis of all the available submissions, including
the evidence produced and the arguments made by the applicant at a public hearing. In the Court’s
view, the mere fact that the IQC had made preliminary findings in the applicant’s case was not
sufficient to prompt objectively justified fears as to its impartiality. Regarding the Appeal Chamber,
the Court stated that the applicant had failed to adduce any arguments capable of being examined
on the merits. It was also satisfied that it had had full jurisdiction in examining the grounds of her
appeal and had given a detailed decision in her case.
The Court thus found no violation of Article 6 § 1 as regards the alleged lack of independence and
impartiality of the vetting bodies.
2. Compliance with the requirements of fairness
The Court reiterated that it was not its task to take the place of the domestic courts. It was primarily
for the national authorities, notably the courts, to resolve problems of interpretation of domestic
legislation and assess evidence.
The Court noted, firstly, that the commencement of the investigation by the IQC had been in
accordance with the law. At its conclusion, preliminary findings had been given to the applicant. In
the Court’s view, the results of the investigation should have enabled the applicant to comprehend
the seriousness of the preliminary findings and to put together her defence. The applicant, who had
been represented by a lawyer of her own choosing, had submitted extensive arguments and
observations. There was no indication that she had lacked the time and facilities to prepare an
adequate defence.
The applicant’s accusation that the IQC had withheld evidence was, for the Court, unsubstantiated
by any evidence in the case file and “mere conjecture”. The IQC had had full jurisdiction over all
matters of fact and law, and had given a decision stating adequate reasons in response to the
applicant’s main arguments.
Lastly, the Court held that the Appeal Chamber had asserted full jurisdiction in the proceedings
before it, in accordance with the law, and had examined each of the grounds of the applicant’s
appeal, including the refusal to accept new evidence, by giving sufficient reasons for its decision.
The Court thus found no violation of Article 6 § 1 as regards the alleged unfairness of the
proceedings.
3. Compliance with the requirement for a public hearing before the Appeal Chamber
The Court reiterated that it had held that the right to a public hearing implied a right to an oral
hearing before at least one instance. Furthermore, the Court stated that judges’ disciplinary
proceedings should only exceptionally take place without an oral hearing at all.
The Court noted that there had been a public hearing before the IQC, which was independent and
impartial, and that the applicant had not requested an oral hearing before the Appeal Chamber,
which, nevertheless, had provided adequate reasons for not holding a public hearing. In view of the
nature of the proceedings on appeal, during which she had had ample opportunity to present her
arguments in writing and there had been no need to hear witnesses or take other oral evidence,
holding a public hearing had not been strictly required.
The Court thus found no violation of Article 6 § 1 as regards the alleged lack of a public hearing
before the Appeal Chamber.
4. Compliance with the principle of legal certainty
The Court reiterated that limitation periods are important for ensuring legal certainty. However, the
Court stated that audit of assets, as an anti-corruption measure, presented special features given
that assets were accumulated over a whole lifetime and the national authorities were required to
evaluate the lawfulness of the total assets acquired by the persons to be vetted.
The Court noted that the adverse findings against the applicant had been made in respect of the
disclosures made in the vetting declaration of assets and prior declarations made over many years.
While the applicant had been placed in a somewhat difficult position to justify the lawful nature of
the underlying financial sources which had served as the basis for the purchase of the flat measuring
101 sq. m, this had been partly due to her own failure to disclose that asset at the time of acquiring
it. In addition, the applicant had not provided any supporting documents justifying the existence of
an objective impossibility to demonstrate the lawful nature of financial sources, which was an
attenuating circumstance provided in the Vetting Act. Furthermore, it was not per se arbitrary that
the burden of proof had shifted onto the applicant in the vetting proceedings after the preliminary
findings.
The Court thus found no violation of Article 6 § 1 as regards the alleged breach of the principle of
legal certainty.
Article 8
The Court stated that dismissal from office had constituted interference with the applicant’s right to
respect for private life, which had been in accordance with the domestic law and had pursued
legitimate aims in accordance with the Convention. Dismissal from office was perhaps the most
serious disciplinary sanction that could be imposed on an individual, thus requiring very solid
evidence of ethical or professional breaches. In assessing the necessity of taking that action, the
Court took note of the “pressing social need” in Albania to reform the justice system because of
alarming levels of corruption in the judiciary.
In assessing whether the reasons adduced by the vetting bodies had been “relevant and sufficient”,
the Court examined the grounds which had led to the applicant’s dismissal from office, specifically
the evaluation of assets and professional competence.
As regards the evaluation of assets, it noted that the applicant had been required to justify the
underlying lawful income for the acquisition of her assets. The Court did not find anything arbitrary
or manifestly unreasonable in the related domestic decisions concluding that the applicant had been
a party to the acquisition of the flat measuring 101 sq. m which she had failed to disclose for a
number of years. It referred to international principles which required judges to meet particularly
high standards of integrity in the conduct of their private matters out of court – above reproach in
the view of a reasonable observer – in order to maintain and enhance the confidence of the public
and reaffirm faith in the integrity of the judiciary. The Court also noted the domestic findings stating
that the applicant had not possessed sufficient income to justify liquid assets in certain years, that
she had failed to disclose the origin of the money in her foreign bank accounts and that her partner
had failed to disclose in due time a large amount of cash, in breach of the relevant law.
As regards the evaluation of professional competence, the Court considered that having regard to
the circumstances of the present case, the vetting bodies had not given adequate reasons to justify a
finding of undermining public trust in the system owing to her alleged failure to recuse herself from
the constitutional proceedings. Furthermore, the Court, reiterated that automatic disqualification of
a judge who had blood ties with another judge who had heard another set of proceedings
concerning one or all parties to the proceedings was not always called for, particularly for a country
the size of Albania. That notwithstanding, the Court considered that the findings made in respect of
the evaluation of assets, were sufficiently serious under national law to justify the applicant’s
dismissal from office.
The Court adjudged, with reference to the domestic courts’ findings, that the applicant’s dismissal
from her post had been proportionate. The existence of a limited scale of sanctions in the Vetting
Act had been consistent with the spirit of vetting proceedings, which, in a unique process, aimed at
ridding the justice system of corrupt elements and preserving the healthy part. Furthermore, it
considered that the lifetime ban imposed by another separate statute on the applicant and other
individuals removed from office on rejoining the justice system on grounds of serious ethical
violations had been consistent with ensuring the integrity of judicial office and public trust in the
justice system. This ban had been all the more justified in view of the national context of ongoing
consolidation of the rule of law.
Thus there had been no violation of Article 8.
Separate opinion
Judge Serghides and Judge Dedov each expressed a dissenting opinion. These opinions are annexed
to the judgment.
