Hoppe, Tilman

English

<intR>²Dok

Judges and Organized CrimeTilman Hoppe 2023-07-18T15:16:12Scandalous arrests of judges taking millions in bribes continue to make headlines.For purging the judiciary from corruption, vetting the integrity of judges throughinternationally supported commissions has become one of the most promisingtools. A landmark decision of 2021 by the ECtHR, upholding the dismissal ofa constitutional court judge from Albania for unexplained wealth, has providedinternational vetting with legal certainty (Xhoxhaj v. Albania).1)Now, in July 2023, the ECtHR has upheld the dismissal of yet another prominentjudge – who had served, both, at the Constitutional Court and the Supreme Courtof Albania (Thanza v. Albania). While it is obvious that a judge should be dismissedfor engaging in organised crime,2) this case may be the first in the world to raiseanother, rather unusual question: Can a judge be dismissed simply for havingcontact with organised crime, even if he has never committed any offence? Theanswer is: yes, in principle. However, the practical relevance remains limited,as evidence for such contacts is difficult to obtain. By contrast, the financialconsequence of links with the criminal world, unexplained wealth, remains highlyrelevant to the dismissal of judges.Dismissing judges for their links to organisedcrime?Under the amended Albanian constitution, judges shall be dismissed if they havehad “inappropriate contact with persons involved in organised crime”. In this case,the ECtHR did not have to answer the question of whether such contacts aresufficient to dismiss a judge: The application did not address this criterion as such (§75). Nevertheless, four arguments suggest that the ECtHR would generally accept it:1. The ECtHR can be expected to follow the Venice Commission’s strongconviction: “[I]t can hardly be doubted that it would be grossly improper for ajudge or a prosecutor to have inappropriate contacts with persons involvedin organised crime. […] [I]t seems clear that the existence of inappropriatecontacts between judges and organised criminals would be contrary to theinterests of national security, contrary to public safety, likely to encourage ratherthan prevent disorder or crime, and likely to threaten rather than protect therights and freedoms of others” (§ 49).2. In 2014, the ECtHR approved the criminal conviction of a person based onthe following elements of the crime: having unexplained wealth “while being inhabitual relations with one or more persons who are engaged in the commissionof [profitable] crimes or misdemeanours” ( 326-6 code pénal; Aboufadda v.France). Thus, “relations with criminals” can be a valid element of crime, whichsuggests that they could also be a reason for dismissal.- 1 -3. The criterion as such, as formulated by the Albanian legislation, is flexibleenough to be implemented in line with any possible concerns the ECtHR mighthave (had).4. In the present case, the ECtHR goes to great length – some 1,900 words – toexplain what is required as evidence to establish contacts with organised crime(§§ 112-123). It seems unlikely that the Court would go to such length if it hadfundamental doubts about the criterion as such. At the very least, it could haveused the opportunity for an obiter dictum, if it had doubts about the criterion. TheCourt has done so in several cases, including on integrity testing.3)When is there “a contact” and when is it“inappropriate”?The Albanian legislation defines an “‘inappropriate contact’ as a meeting, electroniccommunication or another type of wilful contact which is not in compliance with theholding of office by the vetting subject”. The definition of the key term “inappropriate”remains vague: “not in compliance with the holding of office”. It leaves a number ofquestions unanswered: What if the person contacted is the partner in a legitimatebusiness, a friend, a lover, or even a family member? Does the judge have to “breakup” with that person? Does the duration, number, and nature of the contacts makethem “inappropriate”? What does the judge need to know about the organised crime,and how can this be proved? It seems advisable for a vetting commission to defineindicators4) for the fulfilment of such a criterion, as is usually done with other criteria,such as “financial integrity” and “ethics”. In the present case, the Court concludedthat the relationship between the judge and L.H. was “social” without “corruptiveinterests involved” (§§ 7, 119).The Albanian legislation further defines “‘a person involved in organised crime’ asany person who has been convicted or criminally prosecuted for a [qualified] criminaloffence […] except when he or she was declared not guilty by a final court decision”.In the present case, the judge and a third person (“L.H.”) “were briefly investigatedfor corruption. The investigation was closed for lack of a criminal offence” (§ 119).The vetting bodies in Albania interpreted this as involvement in organised crime,because both were never “declared not guilty by a final court decision”. The ECtHRrightly rejected this finding as “excessively formalistic” (§ 120).Albania is so far the only country to include links to organised crimes into the listof criteria for vetting the integrity of sitting judges; Moldova, and Ukraine haveavoided the delicacies of this criterion in their international vetting, while Armenia hasconsidered it for some time but has not yet included it into its legislation. However,these countries are not off the hook. Links to organised crime are a criterion in anycase, even if only indirectly as a lack of ethics. Judicial codes of conduct usuallyinclude rules on “integrity” and “propriety”, as defined by the Bangalore Principlesof Judicial Conduct.5) Given the Venice Commission’s strong statement abovethat it would “be grossly improper for a judge or a prosecutor to have inappropriate- 2 -contacts with persons involved in organised crime”, such contacts are easy to argueas a breach of judicial ethics – if they can ever be proved.How to prove such links?Inappropriate contacts with organised crime usually take place in the shadows.Therefore, they are usually established through sensitive sources: specialinvestigative means, undercover investigations, or confidential informants – eitherby investigative bodies or intelligence services. This also applies to the presentcase, where the judge’s contact person, L.H., “had her telephone communicationsintercepted” (§ 7). This puts the vetting body in a dilemma: how to prove theselinks if intelligence or law enforcement bodies refuse to expose their informants orundercover operations? Therefore, as well-intentioned as the criterion of links toorganised crime is, its practical relevance is minimal.The Albanian vetting body solved the dilemma in a rather Kafkaesque6) way: Itsimply endorsed the findings of the Albanian intelligence service that the judge“had, at some undefined period, ‘inappropriate contact’ with ‘persons’ involved inorganised crime.” The vetting body did not inform the judge of the facts on whichthese findings were based, nor of the time period. Thus, according to the ECtHR,“he was […] in no position to rebut either the factual allegations or their legalclassification for the purposes of the vetting process” (§ 115). The ECtHR stressedthat the vetting bodies had made no efforts to explain that they had “considered,for example, whether concerns about the protection of a specific source could beaddressed by redacting, to the extent possible, identities or other elements that couldreveal the source” (§ 116); equally, it had “adduced no reasoning as to the necessityand proportionality of” restricting access to the intelligence service’s findings (§ 117).How to properly assess wealth?While inappropriate contacts with organised crime could not be established in away that complied with Article 6 ECHR, unusual riches broke the judge’s neck in thepresent case. As his wealth could not be explained by legal means, the Court upheldthe judge’s dismissal. In doing so, the Court relied by and large on its 2021 decision(Xhoxhaj v. Albania). The Court took the opportunity of the present case to clarify afew details: 1. The assessment of wealth can go back decades (in this case about 20years), but not indefinitely (§§ 102-104, 107); 2. The vetting body must give judgesmore than “only three days to submit evidence” (§ 89); however, any regulatedor actual opportunity to do so throughout the entire procedure including appealscounts towards this period (§§ 98-99); 3. The methods of calculating unexplainedwealth may differ between vetting bodies and appeals levels, as long as they aretransparent and not arbitrary (§ 101); 4. The mere non-declaration of an asset maynot always suffice for dismissal if it is supported by legal income and if the judgehas corrected the non-declaration at the beginning of the vetting (§ 154); 5. Vettingbodies may assume that a judge has to spend a certain amount of her income ondaily needs and may calculate this on the basis of a uniform lump sum, as long as itis not arbitrary (§§ 91, 102).- 3 -All in all, the identification of judge’s unexplained wealth remains the most promisingcriterion for cleaning up a corrupt judiciary. It also covers cases, where judges profitfrom their links with organised crime:7) hidden contacts may not stink, but too muchmoney does.The author would like to thank Serhii Voloshyn and David Wellstein for theircomments on a draft of this blog post.References• Followed by two decisions in 2022: Sevdari v. Albania (0662/19; inter aliaon “tribunal established by law”) and Cani v. Albania (37474/20; inter alia onunexplained wealth issues by family members from before office not justifyingdismissal).• For examples from EU member states see: European Commission/CSD (2010),Examining the Links Between Organised Crime and Corruption, p. 107.• See, e.g., Rotaru v. Roumanie (application 27797/10), dismissing the complaintof a (corrupt) police officer against his conviction for soliciting bribes following anundercover integrity test, while implicitly criticising the test obiter dictum: “Evenif the Court takes note of the complainant’s criticism of this test, it is not for theCourt to give its opinion on the necessity of carrying out such investigationsagainst the complainant”, at § 29.• For further indicators used in Albania, see Venice Commission, Kosovo ConceptPaper, CDL-REF(2022)005, p. 106.• See UNODC (2007), Commentary on The Bangalore Principles of JudicialConduct, no. 113: “Inappropriate contacts: The judge must be sensitive to theneed to avoid contacts that may lead people to speculate that there is a specialrelationship between him or her and someone whom the judge may be temptedto favour in some way.”• Kafka (1925; edition 2009, Oxford University Press), The Trial, p. 82: “Ingeneral, the proceedings were kept secret not only from the public but also fromthe accused. […] The accused was not allowed to see the court documentseither […].”• See for another case from Albania combining inappropriate contacts withunexplained wealth: OraNews (2019), Vetting, IQC Makes Dismissals.- 4 -

Judges and Organized Crime

https://intr2dok.vifa-recht.de/servlets/MCRFileNodeServlet/mir_derivate_00015581/Judges_and_Organized_Crime.pdf

Judges and Organized Crime

Abstract

Similar works

Full text

Available Versions

<intR>²Dok