Scandalous arrests of judges taking millions in bribes continue to make headlines. For purging the judiciary from corruption, vetting the integrity of judges through internationally supported commissions has become one of the most promising tools. A landmark decision of 2021 by the ECtHR, upholding the dismissal of a constitutional court judge from Albania for unexplained wealth, has provided international vetting with legal certainty (Xhoxhaj v. Albania).
Now, in July 2023, the ECtHR has upheld the dismissal of yet another prominent judge – who had served, both, at the Constitutional Court and the Supreme Court of Albania (Thanza v. Albania). While it is obvious that a judge should be dismissed for engaging in organised crime, this case may be the first in the world to raise another, rather unusual question: Can a judge be dismissed simply for having contact with organised crime, even if he has never committed any offence? The answer is: yes, in principle. However, the practical relevance remains limited, as evidence for such contacts is difficult to obtain. By contrast, the financial consequence of links with the criminal world, unexplained wealth, remains highly relevant to the dismissal of judges.
Dismissing judges for their links to organised crime?
Under the amended Albanian constitution, judges shall be dismissed if they have had “inappropriate contact with persons involved in organised crime”. In this case, the ECtHR did not have to answer the question of whether such contacts are sufficient 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:
- The ECtHR can be expected to follow the Venice Commission’s strong conviction: “[I]t can hardly be doubted that it would be grossly improper for a judge or a prosecutor to have inappropriate contacts with persons involved in organised crime. […] [I]t seems clear that the existence of inappropriate contacts between judges and organised criminals would be contrary to the interests of national security, contrary to public safety, likely to encourage rather than prevent disorder or crime, and likely to threaten rather than protect the rights and freedoms of others” (§ 49).
- In 2014, the ECtHR approved the criminal conviction of a person based on the following elements of the crime: having unexplained wealth “while being in habitual relations with one or more persons who are engaged in the commission of [profitable] crimes or misdemeanours” ( 326-6 code pénal; Aboufadda v. France). Thus, “relations with criminals” can be a valid element of crime, which suggests that they could also be a reason for dismissal.
- The criterion as such, as formulated by the Albanian legislation, is flexible enough to be implemented in line with any possible concerns the ECtHR might have (had).
- In the present case, the ECtHR goes to great length – some 1,900 words – to explain 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 had fundamental doubts about the criterion as such. At the very least, it could have used the opportunity for an obiter dictum, if it had doubts about the criterion. The Court has done so in several cases, including on integrity testing.
When is there “a contact” and when is it “inappropriate”?
The Albanian legislation defines an “‘inappropriate contact’ as a meeting, electronic communication or another type of wilful contact which is not in compliance with the holding 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 of questions unanswered: What if the person contacted is the partner in a legitimate business, a friend, a lover, or even a family member? Does the judge have to “break up” with that person? Does the duration, number, and nature of the contacts make them “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 define indicators 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 concluded that the relationship between the judge and L.H. was “social” without “corruptive interests involved” (§§ 7, 119).
The Albanian legislation further defines “‘a person involved in organised crime’ as any person who has been convicted or criminally prosecuted for a [qualified] criminal offence […] 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 investigated for 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 ECtHR rightly rejected this finding as “excessively formalistic” (§ 120).
Albania is so far the only country to include links to organised crimes into the list of criteria for vetting the integrity of sitting judges; Moldova, and Ukraine have avoided the delicacies of this criterion in their international vetting, while Armenia has considered 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 any case, even if only indirectly as a lack of ethics. Judicial codes of conduct usually include rules on “integrity” and “propriety”, as defined by the Bangalore Principles of Judicial Conduct. Given the Venice Commission’s strong statement above that it would “be grossly improper for a judge or a prosecutor to have inappropriate contacts with persons involved in organised crime”, such contacts are easy to argue as 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: special investigative means, undercover investigations, or confidential informants – either by investigative bodies or intelligence services. This also applies to the present case, where the judge’s contact person, L.H., “had her telephone communications intercepted” (§ 7). This puts the vetting body in a dilemma: how to prove these links if intelligence or law enforcement bodies refuse to expose their informants or undercover operations? Therefore, as well-intentioned as the criterion of links to organised crime is, its practical relevance is minimal.
The Albanian vetting body solved the dilemma in a rather Kafkaesque way: It simply endorsed the findings of the Albanian intelligence service that the judge “had, at some undefined period, ‘inappropriate contact’ with ‘persons’ involved in organised crime.” The vetting body did not inform the judge of the facts on which these 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 legal classification for the purposes of the vetting process” (§ 115). The ECtHR stressed that 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 be addressed by redacting, to the extent possible, identities or other elements that could reveal the source” (§ 116); equally, it had “adduced no reasoning as to the necessity and 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 a way that complied with Article 6 ECHR, unusual riches broke the judge’s neck in the present case. As his wealth could not be explained by legal means, the Court upheld the 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 a few details: 1. The assessment of wealth can go back decades (in this case about 20 years), but not indefinitely (§§ 102-104, 107); 2. The vetting body must give judges more than “only three days to submit evidence” (§ 89); however, any regulated or actual opportunity to do so throughout the entire procedure including appeals counts towards this period (§§ 98-99); 3. The methods of calculating unexplained wealth may differ between vetting bodies and appeals levels, as long as they are transparent and not arbitrary (§ 101); 4. The mere non-declaration of an asset may not always suffice for dismissal if it is supported by legal income and if the judge has corrected the non-declaration at the beginning of the vetting (§ 154); 5. Vetting bodies may assume that a judge has to spend a certain amount of her income on daily needs and may calculate this on the basis of a uniform lump sum, as long as it is not arbitrary (§§ 91, 102).
All in all, the identification of judge’s unexplained wealth remains the most promising criterion for cleaning up a corrupt judiciary. It also covers cases, where judges profit from their links with organised crime: hidden contacts may not stink, but too much money does.
The author would like to thank Serhii Voloshyn and David Wellstein for their comments on a draft of this blog post.