CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 février 2021

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font-size:14pt } .sB9541D82 { font-family:Arial; color:#212121 } .sB08485A0 { font-family:Arial; font-style:italic; color:#212121 } .s391E78BA { font-family:Arial; background-color:#ffffff } .s3DB046A9 { font-family:Arial; font-style:italic; background-color:#ffffff } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }     THIRD SECTION CASE OF XHOXHAJ v. ALBANIA (Application no. 15227/19)   JUDGMENT   Art 6 § 1 (civil) • Bodies set up to vet serving judges and prosecutors to combat corruption constituting independent and impartial tribunals established by law • Sufficient safeguards • Non-representation of service judges consistent with the extraordinary nature and spirit of the vetting process, accompanied by strict eligibility requirements • Full review jurisdiction of Appeal Chamber Art 6 § 1 (civil) • Fair hearing • Lack of statutory limitation for asset evaluation not breaching the principle of legal certainty given its sui generis nature and context Art 6 § 1 (civil) • Fair hearing • Adequate information, time and facilities to prepare adequate defence, with sufficient assessment and reasons for decisions given by vetting bodies • Nature of proceedings not requiring a public hearing on appeal Art 8 • Private life • Justified dismissal of Constitutional Court judge based on individualised findings from asset evaluation • Proportionate lifetime ban from re-entering justice system for serious ethical violation   STRASBOURG 9 February 2021 FINAL   31/05/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Xhoxhaj v. Albania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Paul Lemmens, President   Georgios A. Serghides,   Dmitry Dedov,   Georges Ravarani,   Maria Elósegui,   Darian Pavli,   Peeter Roosma, judges, and Milan Blaško, Section Registrar, Having regard to: the application (no.   15227/19) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Albanian national, Ms Altina Xhoxhaj (“the applicant”), on 8 March 2019; the decision to give notice of the application to the Albanian Government (“the Government”); the written observations on the admissibility and merits filed by the Government and the applicant; third-party comments received from the European Commission and Respublica, which had been granted leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3); Having deliberated in private on 15 December 2020 and 19   January   2021, Delivers the following judgment, which was adopted on the last-mentioned date: INTRODUCTION 1.     This case concerns the outcome of re-evaluation proceedings (otherwise referred to as “vetting”) against the applicant, which resulted in her dismissal from the post of judge of the Constitutional Court. It is part of a series of applications which have been lodged with the Court raising similar factual and legal issues under Articles 6, 8 and 13 of the Convention. THE FACTS 2.     The applicant was born in 1970 and her address on the application form is given as being in the United States of America. The applicant was represented by Mr   A.   Saccucci and Ms G. Borgna, lawyers practising in Rome. 3.     The Government were represented by their then Agent, Mr A. Metani, and, subsequently, by Ms E. Muçaj of the State Advocate’s Office. The Background TO THE CASE 4 .     In 2014 an ad hoc parliamentary committee, which was to be responsible for the reform of the justice sector, was set up. It subsequently approved a report on the assessment of the justice system in Albania (“the   Assessment Report”).   The Assessment Report referred to a number of public opinion polls and court user surveys carried out between 2009 and 2015, according to which there was widespread public perception that the justice system was plagued by corruption, undue external influence, a lack of transparent practices, excessively lengthy proceedings and non-enforcement of final court decisions. According to public opinion, some judges and prosecutors had to pay kickbacks to be appointed or transferred to vacant positions in the capital city or other major cities. Unofficial data indicated that the cycle of paying kickbacks – mainly with the involvement of a “middleman”, such as a family member, friend or lawyer – was pervasive among the main stakeholders, such as judicial police officers, prosecutors and judges. Consequently, this had hampered the delivery of justice: corrupt judicial police officers took bribes in order to destroy evidence related to the crime scene, corrupt prosecutors accepted payments to avoid instituting criminal proceedings or bringing charges, and corrupt judges delayed holding hearings or conditioned the delivery of a decision on receipt of a kickback. The low level of professionalism demonstrated by the main stakeholders of the justice system had been evident, as had the failings of the legal education system to shape citizens cognisant of their legal rights and obligations and of the importance of familiarity with and observance of the law. The Assessment Report also referred to a number of monitoring reports released by international bodies, which had pointed to varying problems affecting the justice system in Albania. 5.     The Assessment Report served as the cornerstone for the production and adoption of a strategy on justice system reform (“the Reform Strategy”). Some of the measures proposed in the Reform Strategy aimed at, amongst other things, (i) improving the system for the disclosure and verification of assets of judges and prosecutors and conflicts of interest in order to identify cases of appropriation of unlawful assets, (ii) introducing statutory provisions making compulsory a detailed verification of assets of judges and prosecutors and conflicts of interest prior to their taking up office, (iii) increasing transparency in the disclosure of assets of judges and prosecutors by enabling the inclusion of other stakeholders (such as the public and civil society) in providing information, facts and other data that would facilitate their verification and (iv) requiring by law the commencement of disciplinary proceedings against judges and prosecutors for failure to disclose, disclosure out of time or incomplete disclosure of assets and conflicts of interest during the exercise of their duties. 6.     As a result of the proposed Reform Strategy, in 2016 the Constitution was amended and a number of essential statutes were enacted, one of which was the Re-evaluation of Judges and Prosecutors Act, otherwise referred to as the Vetting Act. For the purposes of this judgment, the terms “Re-evaluation of Judges and Prosecutors Act” and “Vetting Act” are used interchangeably. Likewise, the terms “vetting process/proceedings” and “re-evaluation process/proceedings” are used interchangeably. 7.     The vetting process to which all serving judges and prosecutors would be subject would be carried out by an Independent Qualification Commission at first instance and a Special Appeal Chamber on appeal, which would re-evaluate three criteria, namely: an evaluation of assets, an integrity background check to discover links to organised crime and an evaluation of professional competence. All persons to be vetted were required by law to file three separate declarations, as appended to the Vetting Act, in respect of each re-evaluation criterion. The circumstances of the case 8.     The facts of the case, as submitted by the parties, may be summarised as follows. 9.     The applicant’s judicial career started in March 1995 when she was appointed to the post of judge at the Tirana District Court. In 2006, while she continued to work as a judge, she was elected a member of the High Council of Justice, the body responsible for the appointment, transfer and promotion of district and appellate court judges and the termination of their service, where she served for four years. On 25 May 2010 she was appointed, for a non-renewable nine-year term, as a judge of the Constitutional Court. 10.     In accordance with the Assets Disclosure Act, the applicant filed annual declarations of assets between 2003 and 2016, as did her partner, who was a civil servant. Proceedings before the Independent Qualification Commission 11 .     Pursuant to the Re-evaluation of Judges and Prosecutors Act, the applicant filed a declaration of assets ( deklarata e pasurisë ). She and her partner disclosed that they co-owned three properties: (i) a flat measuring 101   sq.   m which had been acquired by means of a contract for an off-plan purchase (“an off-plan contract”) entered into on 8 March 2005 ( blerë më 8   mars 2005 [me] kontratë sipërmarrje ) and had been registered with the local immovable property registration office in December 2011 following the conclusion of a sale contract; (ii) a flat measuring 59 sq. m which had been purchased through an off-plan contract on 5 October 2010 ( kontratë sipërmarrje datë 5.10.2010 ) and (iii) a plot of land measuring 221.9   sq.   m. They both also gave a detailed description of the sources of their income and savings.   The applicant further disclosed that she held bank accounts in the United States, which had been opened in 2015 and 2016. She also filed an integrity background declaration ( deklarata për kontrollin e figurës ) and a professional self-appraisal form ( formulari i vetëvlerësimit professional ) (see   also paragraphs 133 and 134 below). Administrative investigation 12 .     On 14 November 2017, owing to the fact that the applicant had been included on a priority list of persons to be vetted on account of her being a Constitutional Court judge, the Independent Qualification Commission (“IQC”) decided to launch an in-depth administrative investigation ( hetim administrative të thelluar ) into the three declarations that she had filed. 13.     On 30 November 2017 lots were drawn for the composition of the three-member panel of the IQC and the applicant was informed accordingly. 14.     Between 15   December 2017 and 5 March 2018 the IQC asked the applicant to reply to numerous detailed questions. She responded between 26   December 2017 and 6 March 2018. 15 .     On 19 March 2018 the IQC, in accordance with section 47 of the Vetting Act, informed the applicant of the conclusion of the administrative investigation and provided her with the relevant preliminary findings, including the documents which had served as the basis for those findings. In particular, as regards the flat measuring 101 sq. m, the findings stated (i)   that there were inconsistencies in relation to the source of income that had been used to acquire the flat, when comparing the 2005 declaration of assets and the vetting declaration of assets, and in relation to the means by which it had been created, in particular the existence of an off-plan contract concluded in 2003, and (ii) that there was a lack of supporting documents relating to the source of funds which had been used to purchase the flat. As regards the applicant’s financial situation ( likuiditetet ), the findings stated that she had not had sufficient lawful income in 2007, 2009 and 2015 to justify the excessive amount of liquid assets. As regards a plot of land measuring 666 sq. m, which she had disclosed in the 2003 declaration of assets but had not included in the vetting declaration of assets, the findings stated that there were inconsistencies in relation to her share of that plot. Furthermore, she was asked to provide explanations in connection with a complaint made by a member of the public about her failure to recuse herself from the examination of a constitutional complaint. 16 .     Pursuant to section 52 of the Vetting Act and Article D § 5 of the Annex to the Constitution, the IQC shifted the burden of proof onto the applicant, who had twenty days to submit arguments in support of her defence. She was also reminded of her rights under Articles 35 to 40 and 45 to 47 of the Code of Administrative Procedure, including the right to seek access to the case file, submit additional evidence and call any witnesses. 17 .     On 21 March 2018 the applicant made a request for access to her file, seeking information concerning the methodology used to calculate expenses incurred on her trips abroad. The IQC responded favourably on 23, 27 and 30 March 2018. It further transpired that from 6   January to 5   December 2017 the auxiliary bodies which had been authorised by the Vetting Act to assist the vetting bodies in their mandate, namely the High Inspectorate for the Declaration and Audit of Assets and Conflicts of Interest (“HIDAACI”), the Classified Information Security Directorate (“CISD”) and the Inspectorate of the High Council of Justice (“IHCJ”), had given a favourable opinion in relation to all of the applicant’s declarations. 18.     On 7 April 2018 the applicant submitted lengthy arguments and evidence in support of her defence. 19.     On 16 April 2018, following the applicant’s submissions, the IQC asked the applicant to provide additional information so that certain factual circumstances could be determined. 20.     On 17 April 2018 the IQC informed the applicant that a public hearing would be held in accordance with section 55 of the Vetting Act. She was also informed of her rights under Articles 35 to 40 of the Code of Administrative Procedure. The hearing took place on 23 April 2018. The applicant, who was represented by her own counsel, made further submissions in writing and oral pleadings. 21.     On 25 April 2018 the IQC adjourned without taking a decision in the applicant’s case in order to have further time to examine the additional evidence which she had submitted by email on 18 April 2018 and made available at the hearing. The IQC’s decision 22 .     On 4 June 2018 the IQC, having regard to the reports submitted by the public auxiliary bodies, other written evidence it had obtained in the course of the administrative investigation, the submissions made in reply by the applicant and two complaints made by members of the public, delivered its reasoned decision in the applicant’s case. The operative provisions had been made public on 3 May 2018. (a)    Findings regarding the evaluation of assets (i)       As regards the flat measuring 101 sq. m 23 .     The IQC, having examined the evidence in the case file relating to the flat measuring 101 sq. m which belonged to the applicant and her partner, found that “there [was] a lack of legal supporting documents as required by law, false declaration and concealment of income in connection with the lawfulness of the source of income disclosed as having served as the basis for acquiring the flat ( në lidhje me ligjshmërinë e burimit të deklaruar të të ardhurave që kanë shërbyer për blerjen e këtij apartamenti, ka mungesë dokumentacioni justifikues ligjor, deklarim të rremë dhe fshehje të të ardhurave )”. 24 .     In drawing this conclusion, the IQC held that there was an inconsistency between the applicant’s vetting declaration of assets and her partner’s declaration of assets filed in 2003 and 2005 in relation to the source of income which had been used for the acquisition of the asset. The applicant’s vetting declaration of assets indicated that the source of income used for the acquisition of the flat had been her partner’s income from gainful employment in Italy and scholarship money he had received. However, her partner’s declaration of assets filed in 2005 stated for the first time that the flat had been purchased with the proceeds of sale of another flat measuring 93   sq. m, topped up by annual savings. His declaration of assets filed in 2003 stated that the flat measuring 93 sq. m had been bought with the proceeds obtained from the sale of another flat and savings from his employment in Italy. Consequently, according to the IQC, the flat measuring 101 sq. m had been bought with the proceeds secured from the earlier sale of a flat measuring 93 sq. m. 25 .     The IQC further referred to an off-plan contract ( kontratë sipërmarrje ) concluded before a notary public on 7 March 2005, according to which the applicant and her partner had agreed to transfer ownership of the flat measuring 93 sq. m to a third party who, in turn, had paid the sale price in full. The contract stated that both the applicant and her partner had received the sale price. It contained the following statement: “on 31 March 2003 the building company entered into an off-plan contract with [the applicant and her partner] in respect of a flat ... measuring 93 sq. m”. Relying on this contract, the IQC concluded that both the applicant and her partner had acquired the flat measuring 93   sq. m. Even though the applicant and her partner had not been living together at the material time, the IQC held that the applicant could not have been absolved from the obligation to disclose in the 2003 declaration of assets the off-plan contract to which she had been a party and on the basis of which she had acquired property rights and made a payment in respect of the flat. Whereas the transaction had been effected by means of an off-plan contract, the goal of such a transaction was the sale and purchase of real property. Therefore, the true source of funds for the acquisition of the flat measuring 101 sq. m had been the proceeds of sale of an earlier flat measuring 93 sq. m which both the applicant and her partner had bought in 2003 through an off-plan contract. The IQC held that she had been co-owner of the flat and that she had failed to disclose the flat measuring 101   sq. m in any of the annual declarations of assets between 2005 and 2011   (see paragraph 11 above). According to the IQC, “the   [applicant’s] concealment of the notarial deeds [entered into between 2003 and 2005] demonstrate[d] the failure to disclose truthfully the source [of funds used] for the creation of the asset being re-evaluated ( fshehja e veprimeve noteriale nga ana e subjektit të rivlerësimit pasqyron mosdeklarimin me vërtetësi të burimit të krijimit të pasurisë-vetting )”. 26.     As regards the applicant’s claim that she had contributed towards the purchase of the flat, the IQC, making an assessment of the evidence in the case file, held that the applicant had not possessed sufficient liquid assets: in 2003 her liquid assets had amounted to 783,964 Albanian leks   (ALL 6,251 euros (EUR), at the current exchange rate) and in 2004 to ALL   25,000 (EUR 200). Furthermore, she had been burdened with loans obtained in 2003 and 2004. 27.     The IQC further rejected the applicant’s claim that the flat had been purchased with her partner’s income while he had been studying, working and living in Italy from 1992 to 2001. Making an assessment of the evidence in the case file, the IQC, having regard to the fact that only income subject to tax could be considered lawful, held that her partner’s financial situation had been negative. Notwithstanding this, the IQC carried out another assessment on the basis of his disclosed income and reached the conclusion that his net income (ALL 206,399 – EUR 1,646) had been insufficient to purchase the flat. The IQC only took into account the earnings obtained from her partner’s employment as a waiter. In the absence of any supporting documents, the IQC disregarded any earnings which would have been calculated as commission under a contract he had concluded with an Italian company. In determining the living expenses, the IQC based its estimates on information published by the Italian Institute of Statistics for the period 2002 to 2004. 28 .     The IQC stated that the applicant had not submitted any supporting documents to justify her partner’s inability to provide documents dating from the 1990s in accordance with section 32(2) of the Vetting Act. She had not informed the IQC that, in view of the relationship her partner had had with the bank with which he had had an account in Italy, the Italian company which was still operating or the Italian National Institute of Social Security, supporting documents had gone missing, had been lost or could not be reproduced in any other way. Lastly, the IQC found that there were no documents in the case file to demonstrate that the scholarship money, which the Italian Ministry of Foreign Affairs had awarded her partner, had been transferred to his account. The IQC considered that the scholarship money, which had been awarded for a particular purpose, could not have given rise to considerable savings that could be used to buy a flat. It further held that the income which the applicant’s partner claimed to have earned by working on the black market was “not a convincing source for justifying this asset” ( nuk janë burime të bindshme për justifikimin e kësaj pasurie ). (ii)      As regards a flat measuring 58.75 sq. m 29.     The IQC found that the applicant had not possessed sufficient lawful income in 2010 ( të ardhura të ligjshme të mjaftueshme ) to buy a flat measuring 58.75 sq. m through an off-plan contract ( fituar me anë të kontratës së sipërmarrjes ). (iii)    As regards a plot of land measuring 221.9 sq. m 30.     The IQC held that the applicant had benefitted from a bigger plot of land (that is, 221.9 sq. m) than her entitlement by law (that is, 128.89 sq. m) as a result of the transfer of ownership of a plot of land in 2013. (iv)    As regards the financial situation of the applicant and her partner 31 .     The IQC, after determining the sources of assets and liabilities of the applicant and her partner, found that the applicant had lacked lawful financial sources of income ( ka mungesë të burimit të ligjshëm financiar ) to justify her liquid assets [1] in 2007, 2009 and 2015 of a total amount of ALL   1,972,969 (EUR 15,750). In determining the financial situation, the IQC had regard to the carryover cash balance of the applicant and her partner at the start of each year and their documented income. Liabilities comprised living expenses which had been determined by HIDAACI, travel expenses which had been calculated with reference to EUR   180 for a low-cost airline ticket, EUR 300 for a full service carrier ticket and EUR 50 for daily expenses, mortgage repayments which had been calculated on the basis of documents furnished by commercial banks and other encumbrances. 32.     In its determination of liquid assets, the IQC, relying on the supporting documents which the applicant had submitted, accepted the justification of certain income and expenses, for example income earned by her partner, certain travel expenses borne by her employer and educational expenses for her child. It also rejected certain other claims made by the applicant because of a lack of supporting documents. 33 .     The IQC further considered that the fact that her partner had held EUR   15,000 in cash at home had been contrary to a provision of the Asset Disclosure Act, which had required him to deposit the cash in a bank account before filing the annual declaration of assets (see paragraph 202 below). (v)     As regards a mortgage of 40,000 United States dollars (USD) 34.     The IQC held that the applicant had concealed the true nature of a mortgage of USD   40,000 which she had obtained in 2003 and that the taking of the mortgage had been fictitious. (vi)    As regards a plot of agricultural land measuring 666 sq. m 35.     The IQC found that, on the basis of the documents in the case file, the applicant had made an inaccurate disclosure ( deklarim të pasaktë ) in 2003 as regards her share of a plot measuring 666 sq. m, which, according to the sale contract and property certificate, had been registered solely in the name of her mother. (vii) As regards a flat measuring 89.16 sq. m 36.     The IQC held that the applicant had made a false disclosure ( deklarim të rremë ) as regards the proceeds she had obtained, as co-owner, from the sale of a flat in 2003. (b)    Findings regarding the evaluation of other criteria 37.     The IQC endorsed the positive findings of the IHCJ in relation to the applicant’s ethics and professional competence. 38 .     The IQC further found that, following a complaint made by a member of the public under section 53 of the Vetting Act (see paragraph 148 below), the applicant had failed to disclose a conflict of interest and recuse herself from the examination of a constitutional complaint relating to the outcome of a set of civil proceedings before the lower courts in accordance with section 36(1)(c) of the Constitutional Court Act and Article 72 § 6 of the Code of Civil Procedure (see paragraphs 199 and 197 below).   According to the IQC, the conflict of interest lay in the fact that the applicant’s father had been the rapporteur of an appellate court bench which had examined the issue of statutory limitations in a separate set of criminal proceedings against third parties, a complaint which had been brought by the same person who had lodged the constitutional complaint with the Constitutional Court. In that set of criminal proceedings, the appellate court had decided that the prosecution was time-barred. Those third parties had also been an interested party in the constitutional proceedings. 39.     As regards the applicant’s conduct, the IQC considered that she had cooperated during the re-evaluation proceedings and had provided explanations, as requested. However, it considered that the documents she had provided were of a declaratory nature. (c)    Overall conclusion 40.     The IQC, having regard to the findings concerning the evaluation of the applicant’s assets and her failure to disclose a conflict of interest, decided by a majority to order her dismissal from office under section 61(3) and (5) of the Vetting Act (see paragraph 151 below). (d)    Dissenting opinion 41.     A member of the IQC (G.T.) appended a dissenting opinion which stated that the inconsistencies in the declarations of assets as regards the flat measuring 101 sq. m (see paragraph 24 above) could not constitute sufficient evidence to warrant the applicant’s dismissal from office; nor could inaccuracies in the declaration of assets be regarded as insufficient disclosure of assets. In the dissenter’s view, it had been proven that the flat measuring 101   sq. m had been purchased with the proceeds obtained from the sale of another flat, which, in turn, had been acquired in 2003 with the income from the applicant’s partner’s employment in Italy and his scholarship money. Consequently, the income had originated from her partner’s funds and could not have given rise to inconsistencies in the declarations filed in different years. 42.     As her partner had earned the income over twenty years earlier, it had been objectively impossible for the applicant to obtain and submit documents to verify the source thereof. The financial assessment made in respect of her partner had disregarded the income he had received in 1996, 1998 and 1999 while working on the black market in Italy. It was widely acknowledged that Albanian students in Italy or elsewhere abroad had to work on the black market to earn an income in addition to any scholarship awarded to them. Indeed, the Vetting Act favoured lawful income subject to tax. Still, the spirit of the law, read together with the Annex to the Constitution, was in favour of a person whose total assets were up to twice the amount of lawful assets ( favorizon subjektet duke legjitimuar deri ne dyfishin e pasurise se ligjshme ). The applicant’s total assets had not exceeded twice the amount of lawful assets. The dissenter did not share the majority’s view as regards the money from the scholarship; nor did the dissenter endorse the majority’s findings concerning the notarial deed entered into in 2003, in so far as the IQC had not obtained any evidence to show that the applicant had contributed to the acquisition of or benefitted from the sale of that flat. 43.     As regards the applicant’s liquid assets in 2007, 2009 and 2010, the dissenter considered that the inaccuracies in completing the declaration of assets could not be regarded as false disclosure or a lack of lawful income. Furthermore, in the dissenter’s view, the mortgage of USD   40,000 had been directly paid into the building company’s bank account. This fact sufficed to demonstrate that the mortgage had been obtained for the purchase of the flat, and the applicant could not be blamed for material errors in the notarial deed. On the whole, the dissenter concluded, referring to the principle of proportionality, that the applicant had amassed credible assets. 44.     Lastly, the applicant had not been faced with a conflict of interest in connection with the complaint made by the member of the public in relation to her father’s participation in a criminal case as a member of an appellate court bench. Proceedings before the Appeal Chamber The applicant’s appeal 45.     On 19 June 2018 the applicant lodged a 42-page appeal against the IQC’s decision with the Special Appeal Chamber (“the Appeal Chamber”), making two strands of arguments: the first related to allegations concerning procedural or substantial breaches of the law, and the second challenged the IQC’s findings. The applicant reiterated the same arguments in her further written submissions of 21 September and 15   October 2018. (a)    Allegations regarding procedural and substantial breaches of the law 46.     The applicant contended that she had not been given the opportunity to defend herself in respect of the IQC’s ultimate findings that there had been concealment and false or inaccurate disclosure of assets by her, no such findings having been made at the conclusion of the administrative investigation. 47.     The IQC had played an active role in collecting facts, evidence and information, going beyond the standard role of a tribunal which would usually give a decision upon hearing all of the parties’ arguments. It had subsequently failed to secure the procedural guarantees, such as equality of arms, in the proceedings against her. It had been selective in the evidence it had used and relied upon against her and had not considered the analysis, evidence and arguments that she had submitted in response to the findings of the administrative investigation. 48.     The IQC had not had any powers to interpret the previous declarations of assets that she had filed in accordance with the Asset Disclosure Act, which had been assessed positively by HIDAACI. For this reason, she argued that the IQC had retroactively applied section 31 of the Vetting Act to the 2003 declaration of assets. 49.     The IQC had unreasonably shifted the burden of proof onto her for facts in respect of which she had not been obliged to submit any supporting documents. Furthermore, it had not considered the objective impossibility for the applicant to obtain all the supporting documents needed to substantiate the source of her partner’s income. 50.     Lastly, the IQC had not held that she had amassed more than twice the amount of her lawful assets, which would have warranted her dismissal from office in accordance with Article D § 4 of the Annex to the Constitution. In fact, her assets had been half the amount of her lawful income. (b)    Allegations regarding erroneous findings in respect of the re-evaluation criteria 51.     As regards the flat measuring 101 sq. m, the applicant made three strands of arguments. Firstly, she argued that the IQC had misinterpreted the law by equating the conclusion of a legal transaction ( veprim juridik ) – with reference to the 2003 and 2005 off-plan contracts – to the acquisition of an “asset”. There had been no obligation for her to disclose legal transactions, including the off-plan contracts which had not contributed to the acquisition of an asset, under the Asset Disclosure Act and the Vetting Act. 52 .     Secondly, the applicant’s partner had carried out all the legal transactions in 2003 and 2005, the applicant not having been a party to them. He had disclosed the properties he had acquired, including the origin of income used, in the 2003 and 2005 declarations of assets, with no concealment thereof. She had disclosed their co-ownership in the 2011 declaration of assets, after her partner had decided to name her as joint owner with a 50% share of the flat in the registration of that property with the authorities. In this connection, she appended to her appeal a certificate issued by the Albanian company with which her partner had entered into an off-plan contract in 2003 and a certificate issued by her partner’s former Italian employer certifying that he had worked for them from 1995 to 2001. 53.     Thirdly, as regards the calculation of her partner’s living expenses in Italy from 1992 to June 1995, the IQC had relied on figures corresponding to the period 2002 to 2004, when the cost of living had increased as a result of inflation caused by the replacement of the Italian lira with the euro. Furthermore, her partner had been lawfully employed from July 1995 to July 2000, as evidenced by copies of his employment contract and some salary slips. According to an empirical assessment of her partner’s income and expenditure, he had saved ALL   3,444,871.32 (EUR 27,586), which justified the acquisition of the flat in 2003. 54.     As regards liquid assets, the IQC had not considered the fact that the expenses of certain business trips had been borne by her employer or host institutions or that the expenses of certain personal trips had been borne by host families. It had unjustly attributed all those expenses to her. Making her own assessment for 2007, 2009 and 2015, she argued that she had had sufficient income to cover all the necessary expenses. 55.     As regards the complaint made by a member of the public, the applicant submitted that the member of the public had lodged a criminal complaint with the prosecutor’s office against two private individuals for alleged forgery of official documents. Following the institution of criminal proceedings by the prosecutor’s office, to which the member of the public had not been a party, in 2011 a Court of Appeal bench, of which her father had been a member, had decided that the prosecution of the private individuals was time-barred and had not examined the merits of the case. 56.     The constitutional proceedings, which had been examined by a Constitutional Court bench, of which the applicant had been a member, had concerned a request submitted by the same member of the public about the outcome of a set of civil proceedings relating to the invalidation of a sale contract concluded between that person and a legal entity in 1999. As the constitutional proceedings had had no connection whatsoever with the criminal proceedings, she had not been faced with a conflict of interest so as to warrant the finding that she had undermined public trust in the justice system, as stipulated in section 61(5) of the Vetting Act. 57.     In view of the above arguments, the applicant maintained that her dismissal from office had been disproportionate and that the proceedings before the IQC had been conducted in breach of the principles of lawfulness, fairness, impartiality, equality before the law and proportionality. The Appeal Chamber’s decision 58.     On 16 July 2018 lots were drawn for the composition of the five-member panel of the Appeal Chamber and the applicant was notified accordingly. She was subsequently informed that her appeal would be examined in camera on 24 October 2018. 59 .     On 24 October 2018 the Appeal Chamber gave its decision, examining the applicable procedure before it as well as the applicant’s grounds of appeal. She was notified of the decision on 23 November 2018. (a)    Preliminary findings 60 .     By way of general observation, the Appeal Chamber confirmed that the proceedings before it were governed by section 65 of the Vetting Act and, amongst others, sections 47, 49 and 51 of the Administrative Courts Act (see   paragraphs 153, and 194-96 below). Pursuant to sections 47 and 49(2) of the Administrative Courts Act, the Appeal Chamber declined to admit new evidence submitted by the applicant to the case file. It reasoned that she had not put forward any reasons for her inability to submit the new evidence to the IQC. It also declined to admit further evidence submitted on 15 October 2018, in accordance with section 49(6)(a) of the Vetting Act (see paragraph 146 below). The Appeal Chamber decided not to accept additional complaints made by other members of the public following the delivery of the IQC’s decision, as there were no grounds for an investigation. 61 .     Even though the applicant had not requested a public hearing in her appeal, the Appeal Chamber considered that it was not necessary to hold one as (i) the IQC had made an accurate and comprehensive assessment of the facts, (ii) there was no need to accept new evidence or assess new facts, (iii) the IQC had not committed any serious procedural breaches or provided an erroneous or incomplete statement of facts and (iv) there was no need to readmit the evidence which had been accepted by the IQC. 62.     The Appeal Chamber clarified that the vetting bodies were empowered by sections 30, 32 and 33 of the Vetting Act as well as Article Ç § 4 and Article D of the Annex to the Constitution to consider an individual’s declarations of assets made since 2003 in order to verify whether the person being vetted owned more assets than he or she could lawfully possess or whether the person had made an accurate and complete disclosure of his or her assets and of assets belonging to other related persons. Since the statutory provisions had given a probative value to the annual declarations of assets, they could be regarded as having the same importance as the vetting declaration of assets. The IQC and Appeal Chamber would consider these declarations, together with other evidence, as a whole, in order to determine the circumstances of the case and make a just decision. The IQC would also examine the report drawn up by HIDAACI in order to determine its probative value and accuracy ( provueshmërinë dhe vërtetësinë ). 63.     The Appeal Chamber further clarified that upon the closure of the administrative investigation, the IQC had informed the applicant of its preliminary findings in respect of each asset and shifted the burden of proof onto her. Final findings relating to concealment or inaccurate disclosure of assets were to be made after the person being vetted had submitted arguments and evidence in his or her defence. In this connection, the person being vetted was required to convincingly demonstrate the lawful source of his or her assets and income and to not conceal or inaccurately disclose assets in his or her possession or use. The re-evaluation process was an administrative/disciplinary procedure (never akin to a criminal process) ( proccesi i rivlerësimit është një procedurë administrative/sanksionuese (dhe asnjëherë një proces penal) , which aimed at affording all the guarantees relating to the right to a fair hearing. 64.     In the applicant’s case, the Appeal Chamber noted that the conclusion of the administrative investigation had related so