The Fraught Legal History of the “Special Task Force”

By Vincent W.J. van Gerven Oei,
The Fraught Legal History of the “Special Task Force”

The legal history of the Special Task Force, introduced in public two days ago, is the history of a government trying systematically to set up an investigation bureau within the Ministry of Interior, under the control of the executive instead of the judiciary. This is a history of four attempts to concentrate power in one branch of government. And the final one appears – at least for now – to have been successful.

First attempt

In July 2014, Parliament approved Law 108/2014 regarding the State Police. Chapter VI of this law included the introduction of a National Investigation Bureau (BKH), modelled on the American FBI. According to the law, this new institution with investigative powers in the field of corruption and organized crime would be a special structure within the State Police and fall directly under the purview of the Ministry of Interior Affairs, at the time led by Saimir Tahiri, who would also nominate its director. (Former Minister Tahiri has recently been faced with strong allegations of being involved in drug trafficking and organized crime.)

The BKH would also feature a National Coordinating Committee (KKK) headed by the Minister of Interior, which would include the head of the State Police, the director of the BKH, and representatives of the secret service, prosecution, and tax evasion and money laundering departments of the Ministry of Finance. The KKK would determine the main strategy of the BKH.

In April 2015, the Constitutional Court voted 7 to 2 against Chapter VI of the law, declaring it unconstitutional:

The National Investigation Bureau conflicts with article 108 of the Constitution; criminal prosecution is a competence of the Prosecution and the Ministry of Justice.

The Constitutional Court remarked that Law 108/2014 was adopted with a simple majority, while overruling a law that needs a qualified majority, the Constitution. Furthermore, the Constitutional Court found that Chapter VI threatened the right of citizens to a fair trial because the investigation would be led by the Ministry of Interior, and violated the fundamental human rights enshrined in the Constitution.

With this verdict, the Constitutional Court strongly protected the separation of powers between the judicial and executive branches of government, as well as the fundamental rights of Albanian citizens.

Second attempt

In February 2016, Rama government presented a draft law regarding several additions to Law 108/2014, in an attempt to replace Chapter VI that was declared unconstitutional.

In this new draft law, the director of the BKH would still be nominated by the Minister of Interior, but only with the approval of the General Prosecutor. Moreover, the Prosecution would deliver several prosecutors to serve within the BKH. But still, the entire structure – and this is essential – would be placed fully under the control of the executive branch of government.

Also the definition of its field of operation became more precise. The BKH would specifically address corruption, abuse of office, money laundering, and several other serious crimes (specifically articles 245/1, 248, 256, 257/a, 258, 287, 294, 295/a, and 328 of the Penal Code)

Finally, the new draft law removed any mention of the KKK, replacing it with an Independent Review Commission (KPR), which would be appointed by the EU and US embassies in Albania. The KPR would monitor the recruitment and training of BKH employees, and secure the legality of its decisions. (Note how this closely imitates the role of the Independent Monitoring Operation in the reassessment of judges and prosecutors)

The draft law was later withdrawn by the government after it failed to pass through Parliament before its summer recession.

Third attempt

In October 2016, Parliament passed with bipartisan support one of the core laws of the judicial reform: Law 95/2016 regarding the organization and functioning of institutions to fight corruption and organized crime.

Article 4 of Law 95/2016 established a Special Prosecution to investigate corruption and organized crime, whereas article 5 placed the BKH squarely in the service of this Special Prosecution. According to this law, the director of the BKH would be nominated by the prosecutors of the Special Prosecution, as required by the Constitution.

Even though Law 95/2016 is in force, the Special Prosecution has not yet been established because it is supposed to be nominated by the High Prosecutorial Council (KLP). KLP elections have been dragging along in Parliament, and as long as the KLP is not elected by Parliament, it cannot nominate the Special Prosecution, which therefore is unable to nominate the director of the BKH.

Even though the institutions that are supposed to fight organized crime and corruption have been enshrined in law with bipartisan and international support, they have not been established due to government’s incompetence (or unwillingness) of the government.

If government was truly serious in addressing these serious concerns it would accelerate the election of the KLP, which would allow all other institutions to fall into place.

Fourth attempt

It appears that both the US and EU have followed the government in its abandonment of the Special Prosecution and the BKH – now that it no longer can be controlled by the Ministry of Interior. Instead, through of completely opaque process that did at no point involve the Prosecution or Parliament, the government has recently launched an “operation” called “The Power of Law” and a “Task Force against Organized Crime Groups and Organizations.”

US Ambassador Donald Lu pledged two FBI agents to this “operation” and “task force,” while EU Ambassador Vlahutin praised this initiative with the following words.

I am standing here because I want to believe that the operation Power of Law will be a truly decisive step towards a State that is much stronger than any sort of crime. I hope with all my heart that I will be proven right. I commend the minister and his deputies, and all honest members of the police force, who want to do the right thing. Who want to prove they have the will, the strength and the capacity to safeguard the law and order and the security of all citizens.

We, from the international community, are not police, we are not prosecutors or judges. We can not do your job. But we are your allies and your partners in this fight, and we will do what we can to help you do your job properly.

We will assist you, monitor, work with you as much as it takes to reach a success. Not because we think we know better, but because we know that this is a very challenging battle, and that you need help. You need to show results, concrete, tangible and irreversible.

Now let us have a closer look at the precise construction of this “right thing” that will create a “State [note the capital] that is much stronger than any sort of crime”:

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The organigram of the Task Force features a coordinating body (Central Task Force, TFQ) headed by the Ministry of Interior, including representatives of the Prosecution, State Police, secret services, the Ministry of Finance, and others. In short, this is basically the same structure as the National Coordinating Committee (KKK) of the BKH in the 2014 law that was later declared unconstitutional by the Constitutional Court. And remember the Independent Review Commission (KPR) of the second attempt? Instead we now have FBI agents “assisting” the Task Force.

By choosing the name “Task Force” instead of the National Bureau of Investigation, government has smartly created the illusion that this institution would be small and temporary. On the contrary, the organigram further describes Regional Special Task Forces under the command of the Central Special Task Force in every district, with its own directors, specialists, and agents.

In other words, the Task Force is a gigantic institution, parallel to the Prosecution, but fully under the control of the Ministry of Interior Affairs.

Moreover, it investigates a field, organized crime, which according to Law 95/2016 is the competence of the Special Prosecution.

Finally, perhaps the most worrying aspect of the Task Force is that it will not be instituted by law, but rather by Decree of the Council of Ministers (VKM). This means that the entire structure of the Task Force, its function and employees, is basically at the mercy of the Prime Minister, without any possible oversight by Parliament.

This is only the latest attempt of Prime Minister Rama to “rule by decree” rather than through Parliament, but it is shocking in its shamelessness.

Even more abject is the unanimous acclaim of the international community in Albania, which has shown not only a complete lack of understanding of the Albanian legal system and its history, but moreover stab the judicial reform – which they so much pushed for – in the back. With the establishment of the Task Force, the Special Prosecution and BKH have become de facto useless.

Moreover, anyone investigated by the Task Force for (possibly very real) crimes can now easily turn toward the Constitutional Court or the European Court for Human Rights in Strasbourg, claiming they did not receive a fair trial. And they would win. In fact, if I were Saimir Tahiri, my greatest hope would be to be investigated by the Task Force instead of the Prosecution of Serious Crimes: I would be certain of walking away a free man.

Recapitulation

With the establishment of the Task Force, aided by the internationals, Prime Minister Edi Rama has succeeded in doing so, as follows:

  1. Law 108/2014 regarding the State Police, declared unconstitutional by the Constitutional Court;
  2. Draft law regarding several additions to Law 108/2014, withdrawn by the government;
  3. Law 95/2016, establishes BKH under the Special Prosecution, government “sabotages” the nomination of the Special Prosecution;
  4. The Special Task Force, an investigative bureau inside the Ministry of Interior along the lines sketched out in Law 108/2014 – success.


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