The spirit over the letter of the law

The spirit over the letter of the law

This article has been written for Albanian Free Press newspaper and 

By Eduard Zaloshnja

A hearing, as part of the vetting process, was held yesterday for the Constitutional Court justice, Fatmir Hoxha. If he is unable to pass this screening process, this important court will only remain with three judges and this makes this court unable to function.

But is it possible for this judge not to pass the screening process?

Following a check of his moral integrity and professional practice, nothing out of the ordinary was noticed. Even his financial declarations made in the past 13 or 14 years, seem to coincide with his family’s incomes and expenses. A year ago, he had sold an apartment in Shkodra, while he had purchased an apartment in Tirana and this led to a discrepancy of 1.7 million lek. This discrepancy was due to the difference between the value of the furniture sold in Shkoder and the furniture bought in Tirana. The judge claimed that for the purchase of this new furniture, he had used a loan from his brother in law and money that guests at his wedding had offered as gifts.

If this discrepancy leads to a removal of this judge from the justice system, then we can say that the vetting  has a very fine net. This screening process will only be passed by very few judges and prosecutors.

The judge in question (Fatmir Hoxha) is not said to be a supporter of this or that political party. In fact, his decisions have sometimes been in favour of the current majority and sometimes in favour of the current opposition (even when they were in opposite roles). According to ILDPK, he’s the only judge among all other top judges who does not own a private car. And he’s the only judge who has bought his apartment through a loan (and he still has 40 thousand euros to pay on this loan).

If a judge like that cannot pass the vetting process, then who will ever pass it?

An ancient concept of justice tells us that we should not only read the letter of the law, but the spirit of the law. The purpose of the vetting package is to rid the justice system of corrupt or incompetent people. Meanwhile, the law in itself states that there should be no discrepancy whatsoever when screening judges’ assets. But, this may never be achieved.

So, the justice system should be left without judges or prosecutors?

The spirit of the law should prevail in cases when there are small discrepancies and when the moral and professional integrity of the judge/prosecutor is flawless.

So, a few days ago, a prosecutor from Shkodra (Besa Nikëhasani) could not pass the screening process for discrepancies in the value of properties that she owned and the family incomes that she had declared. This discrepancy seemed to have been caused by her husband’s incomes and the money that his mother gave to him.

This prosecutor had applied for a post at the High Board of Prosecutors (which is the institution that elects the chief prosecutor and other important prosecutors of SPAK among others). She based her application on the reputation that she had as a rigorous and incorruptible prosecutor. This prosecutor was known for her strict nature. This is the reason why with tears in her eyes, she swore in front of the cameras (after the decision of the vetting commission) that she had never violated the law and the criminal procedure throughout her entire career.

In the case of the decision taken on prosecutor Nikëhasani, the letter of the law seemed to prevail over the very spirit of the law. And this is a scary precedent, because in the future, the screening process may be passed by judges/prosecutors who have not violated the law (because they’ve been able to conceal their assets), but they may have a reputation as corrupted officials, something which goes against the very spirit of the law.

The vetting process has just started. We need to wait and see how it will continue. But, if this process fails judges and prosecutors for minor discrepancies in the declaration of their assets, while others (who are known to be corrupted) pass, this process will mark a big failure.

The republication of this article is strictly forbidden without a written permission from the Albanian Free Press newsroom