CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 4 octobre 2022

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ALBANIA (Application no. 37474/20)   JUDGMENT   Art 6 § 1 (civil) • Tribunal established by law • Arguable claim of manifest breach of fundamental domestic rule adversely affecting appointment of a Special Appeal Chamber (SAC) judge sitting on panel which vetted and dismissed prosecutor • Application of three-step test formulated in Guðmundur Andri Ástráðsson v.   Iceland [GC] • No clear and authoritative pronouncement by the domestic courts on the question of a manifest breach of domestic law • Authorities under an obligation to verify compliance of SAC judges with statutory eligibility criteria • No effective domestic court review and redress Art 46 • Individual measures • Reopening of vetting proceedings, upon applicant’s request, and re-examination of case in compliance with Art   6 §   1 requirements   STRASBOURG 4 October 2022 FINAL   04/01/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Besnik Cani v. Albania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Georges Ravarani , President,   Georgios A. Serghides ,   María Elósegui ,   Darian Pavli ,   Peeter Roosma ,   Andreas Zünd ,   Frédéric Krenc , Judges,   and Milan Blaško, Section Registrar, Having regard to: the application (no.   37474/20) 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, Mr Besnik Cani (“the applicant”), on 25 August 2020; the decision to give notice to the Albanian Government (“the Government”) of a part of the complaints under Article 6 § 1, Article 8 and Article 13 of the Convention and to declare inadmissible the remainder of the application; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; Having deliberated in private on 13 September 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant is a former prosecutor and the case concerns his complaint under Article 6 § 1 of the Convention that the Special Appeal Chamber that dismissed him from his former office was not “a tribunal established by law”, given that one of the judges that heard his case had been appointed to that position in violation of a statutory eligibility criterion. THE FACTS 2.     The applicant was born in 1970 and lives in Tirana. He was represented before the Court by Mr E. Halimi, a lawyer practising in Tirana. 3.     The Government were initially represented by their former Agent, Ms   B. Lilo and subsequently by Mr O. Moçka, General State Advocate. 4.     The facts of the case may be summarised as follows. Background to the vetting proceedings in Albania General background 5.     In 2016 Albania embarked on a far-reaching justice system reform, which led to amendments to the Constitution and the enactment of a number of statutes relating to, among other things, the re-evaluation of all serving judges and prosecutors, and certain legal advisors/assistants (otherwise referred to as the “vetting process”) (see Xhoxhaj v. Albania , no. 15227/19, §§ 4-7, 9 February 2021). The most important provisions regarding the vetting process were included in an annex to the Constitution. 6.     The vetting process would be carried out by an Independent Qualification Commission ( Komisioni I Pavarur I Kualifikimit – “the IQC”) at first instance and – in the event of an appeal – a Special Appeal Chamber (“the SAC”) attached to the Constitutional Court (jointly referred to as “the vetting bodies”). Albanian citizens who, among other conditions, had not been subjected to the disciplinary measure of dismissal from office ( masë disiplinore e largimit nga puna ) or who had not been subjected to another disciplinary measure that was still in force could be appointed members of the vetting bodies (ibid., § 123; see also paragraph 50 below). Following a pre-selection process undertaken by the President of the Republic (or in certain cases by the People’s Advocate), the candidates would be interviewed and subsequently appointed by Parliament. 7.     The IQC and the SAC would re-evaluate all serving judges and prosecutors on the basis of three criteria: (i) an evaluation of their personal assets, (ii) an integrity background check aimed at determining any possible links to organised crime and (iii) an evaluation of their professional expertise. The Public Commissioner’s Office would represent the public interest before the vetting bodies; the International Monitoring Operation (“IMO”), led by the European Commission and composed of international observers, would support, monitor and supervise the re-evaluation process. At the conclusion of each set of re-evaluation proceedings, the vetting bodies would give reasoned decisions confirming in office or suspending or dismissing from office the person being vetted. Appointments and dismissals of judge L.D. Appointment and dismissal as a judge of the District Court of Tirana 8 .     On 24 April 1994 L.D. was appointed as a judge of the District Court of Tirana. On 24 December 1997 the High Council of Justice (“the HCJ”), which at the time in question was the body that appointed and dismissed judges, dismissed L.D. from his office for breaching the law and for incompetence ( shkelje të ligjës dhe paaftësi në detyrë ). 9 .     Following an open call for the recruitment of five judges to the District Court of Tirana and L.D.’s application for one of the positions, on 5   November 2016 the HCJ decided to disqualify L.D. from the competition on the grounds that he had been dismissed from the same position on 24   December 1997. L.D.’s appointment to and dismissal from the SAC 10 .     In response to a public call for expressions of interest issued by the Peoples’ Advocate, on 3 February 2017 L.D. submitted an application expressing his interest in, among other vacancies, the position of SAC judge. In his application L.D. enumerated the main eligibility criteria for the position and stated that he met all of them. In particular, he stated in his application the following: “... against me there has not been taken the disciplinary measure of dismissal from office or any other disciplinary measure that is still in force, pursuant to the law applicable at the time of [my] application [for the position of SAC judge].” 11.     Following the establishment by the People’s Advocate of an ad hoc commission that would review all applications received for positions on the vetting bodies, on 13 February 2017 the said commission and the IMO adopted a protocol on the method by which the compliance of candidates with the statutory eligibility criteria would be evaluated. In so far as relevant, the protocol provided that a self-declaration from the candidates would be sufficient to consider that a candidate had not been “subjected to the disciplinary measure of dismissal from office or any another disciplinary measure that had been still in force at the time of applying” for a position on one of the vetting bodies, as required by section 6(1)(dh) of the Vetting Act (see paragraph 50 below). 12.     Following a number of exchanges between the Peoples’ Advocate, the IMO and Parliament, the Peoples’ Advocate ultimately forwarded to Parliament a list of the candidates who met the statutory eligibility criteria. The list included L.D. 13 .     On 2 June 2017 an ad hoc commission of Parliament held a hearing during which it interviewed L.D. and other candidates for the vetting bodies. One of the members of the commission asked L.D. whether he had been dismissed or had resigned from his former position as judge of the District Court of Tirana. L.D. answered that he had resigned. 14 .     By decision no. 82/2017 of 17 June 2017 Parliament confirmed en bloc the list of members of the vetting bodies, L.D. being appointed to the position of SAC judge. 15 .     On 17 January 2020, while the applicant’s re-evaluation proceedings were ongoing before the SAC (see paragraphs 33-34 below), the applicant lodged a criminal complaint in respect of L.D. The complaint referred to L.D.’s dismissal in 1997 from his office as a judge of the District Court of Tirana (see paragraph 8 above) and alleged that L.D. had engaged in the “falsification of documents” by submitting to the Peoples’ Advocate an application which had stated that he had never been dismissed from any office (see paragraph 10 above). Following a decision adopted by the prosecutor’s office on 15 July 2020 to charge L.D. with falsifying documents, on 24   July   2020 the SAC decided to suspend L.D. from his office as SAC judge. 16 .   Following the Supreme Court’s confirmation of L.D.’s conviction for the said offence (see paragraph 27 below), on 31 May 2021 the disciplinary commission of the SAC (“the Disciplinary Commission”) – which is the body with authority to decide on disciplinary breaches committed by judges of the SAC – dismissed L.D. from his office of SAC judge. The Disciplinary Commission referred to Article 128 § 2 (b) of the Constitution, finding that L.D.’s criminal conviction amounted to a disciplinary breach that rendered him unfit to continue holding the office of SAC judge. In response to L.D.’s argument that his conviction was contrary to the law, the Disciplinary Commission noted that its jurisdiction was confined to the question of whether L.D. had been convicted or not and that it could not hear arguments regarding the merits of the conviction. Criminal proceedings against L.D. First-instance judgment 17.     In its indictment against L.D. the prosecutor’s office submitted, in so far as relevant, that under domestic law only candidates who had not been previously dismissed from an office could be appointed as judges of the SAC. They further argued that L.D. had lodged a forged application with the domestic authorities, contrary to Article 186 § 1 of the Criminal Code; the forgery had consisted of a written statement asserting that he had never been dismissed from any office. 18.     L.D. denied the charge. He submitted that the 1997 disciplinary measure against him had been removed from his record (expunged) pursuant to section 33(6) of the 2008 Judiciary Act (Law no.   9877/2008 on the organisation and functioning of the judiciary, as amended) (see paragraph 55 below), which in his view provided that disciplinary measures in respect of serious breaches were to be removed from the record of the judge concerned within three years if no additional disciplinary measure had been imposed during that period. 19.     On 1 December 2020 the Anti-Corruption and Organised Crime Court of First Instance found L.D. guilty of forging documents and sentenced him to six months’ imprisonment, suspended for twelve months. 20.     The court held that under domestic law a candidate was disqualified from holding the office of SAC judge if he/she had been subjected to the disciplinary measure of dismissal from office, regardless of the date on which that measure had been imposed. 21.     Furthermore, the court noted that under section 6(1) (dh) of the Vetting Act, if a candidate had been subjected to the disciplinary measure of dismissal from office it meant that that candidate did not meet the statutory conditions for appointment to the position of SAC judge. 22.     In response to L.D.’s argument that the measure against him had been removed from his record, the court noted that section 32(1) of the 2008 Judiciary Act provided for three kinds of disciplinary measures, namely: (i)   less serious measures, (ii) serious measures and (iii) very serious measures. In the court’s view, section 33(6) of the 2008 Judiciary Act provided that all less serious and serious disciplinary measures were to be removed from the record of the judge concerned upon the expiry of the relevant time-limits; however, it did not provide for the removal of very serious disciplinary measures, such as dismissal from office. The court also cited section 150 § 3 of the Status of Judges and Prosecutors Act (Law no.   96/2016, as amended – see paragraph 54 below), which governed the matter after the repeal of the 2008 Judiciary Act and which provided that the disciplinary measure of dismissal from office could not be removed from a judge’s record. The court therefore concluded that the 1997 disciplinary measure against L.D. had not been removed from his record. 23.     Lastly, the court also stated that had L.D.’s dismissal from his office in 1997 been known to the domestic authorities, it would have disqualified him from being appointed as an SAC judge. Second-instance judgment 24.     Following an appeal lodged by L.D., on 8 March 2021 the Anti-Corruption and Organised Crime Court of Appeal upheld the first-instance judgment, essentially reiterating the same reasons. 25 .     The appellate court stated in particular that: “The content of the application/request [lodged by L.D. for a position on the SAC] in this case is important and carries consequences, as the non-fulfilment of the formal criteria provided [in section 6(1) of the Vetting Act] leads to the disqualification of the candidate/applicant. This rule demonstrates the importance that the lawmaker attached to these criteria, which relate to the personal qualities that an applicant/candidate must possess in order to be appointed to the institutions [overseeing the] transitional re-evaluation of judges and prosecutors. These qualities/criteria, [which are] required by law, are important when cited before a public institution – all the more so in the case at hand, where the whole process of the transitional re-evaluation of judges and prosecutors is directly related to public trust in the justice [system] (which is the purpose of the creation of these institutions)” 26 .     The appellate court also held that: “... the fact that the bodies empowered by law for the verification of candidates to the transitional re-evaluation institutions of judges and prosecutors have not performed the relevant verifications in accordance with the legal requirements [...], does not exclude the liability of the defendant, who, intentionally and in full awareness has presented in his application a false circumstance, [thereby] hiding a disqualifying condition related to the existence of a disciplinary measure of removal/dismissal from office imposed on him.” The Supreme Court’s judgment 27 .     On 26 October 2021 the Supreme Court rejected as inadmissible a cassation appeal lodged by L.D. and in essence upheld the reasoning and conclusions of the lower courts. 28 .     The Supreme Court stated that a previous dismissal from an office disqualified a candidate from holding certain public functions and confirmed that disciplinary measures for very serious breaches were not removed from a judge’s record with the passage of time. The court further found that: “69. ... [L.D.] deliberately provided false information in his application for the position of judge with the Special Appeal Chamber, for which position he [was deemed] qualified and [was later] appointed, precisely because of the untrue information that he had provided in the application form. If the petitioner [L.D.] had disclosed in his application his dismissal from his office in 1997 he would have risked being disqualified under the law [from being considered] for the positions [on the vetting bodies]. 70. The failure of the relevant bodies under Law no. 84/2016 ... to verify the conditions that must be met by candidates for positions [on] the re-evaluation bodies does not absolve the applicant of responsibility for declaring false information in his application.” 29 .     Further on, the Supreme Court stated: “78. It is understandable that the Law on the transitional re-evaluation of judges and prosecutors ... in setting out the criteria provided under Article 6, aimed to appoint ... to re-evaluation institutions [people] who enjoyed high moral and professional integrity.” 30.     One judge appended a dissenting opinion which argued that L.D.’s application for the position of SAC judge was merely a private document which could not be subject to forgery; he further submitted that, in any event, L.D.’s defence that he had believed that the disciplinary measure had been removed from his record was arguable, and that no criminal intent could therefore be inferred from the circumstances of the case. 31.     In the dissenting judge’s opinion, criminal courts were not competent to make a final determination that L.D.’s dismissal in 1997 disqualified him from holding the position of SAC judge; moreover, even assuming that the 1997 dismissal had disqualified L.D., his appointment as an SAC judge had only been possible thanks to the failure of the People’s Advocate and Parliament to verify whether he had fulfilled the relevant criteria (and not to the application that L.D. had lodged with the People’s Advocate). The vetting proceedings in relation to the applicant Proceedings before the Independent Qualification Commission 32.     The applicant was appointed to the post of prosecutor in 2003. Upon the entry into force of the Vetting Act in 2016 and his appointment as a member of the governing body of the prosecutor’s office (namely, the High Prosecutorial Council), the applicant was added to a priority list of persons to be vetted. 33 .     On 27 November 2018 the IQC confirmed the applicant in his position. The IQC found that the applicant had not concealed any assets: it did find a number of inaccuracies in his annual declarations of assets, and the applicant was unable to demonstrate the lawful source of various payments totalling 819,812 Albanian leks (ALL – approximately 6,800 euros (EUR)) that he had received over an eleven-year period; however, in the IQC’s view the size of those sums were insufficient to justify his dismissal. Moreover, the IQC concluded that the applicant had not had any inappropriate contact with individuals involved in organised crime and that no problematic issues had been found during his integrity background check. Lastly, the IQC found that there had been some circumstances that had called into question the applicant’s professionalism and ethics; however, they had not constituted sufficient grounds for concluding that the applicant did not meet the minimum professional or ethical standards. Accordingly, the IQC referred those matters to the body in charge of disciplinary breaches for further verification. 34 .     Following an appeal by the Public Commissioner’s Office against the IQC’s decision, the case was allocated to the SAC, sitting as a bench of five judges (including L.D.). Proceedings before the SAC 35 .     On 17 January 2020 the applicant – alleging, inter alia , that L.D. had been appointed to the SAC despite the fact that he had not met the statutory eligibility requirements (see paragraph 8 above and paragraph 50 below) –lodged a request that the SAC terminate L.D.’s term of office (“the first request”).   On the same date, the applicant lodged a criminal complaint against L.D. alleging forgery (see paragraph 15 above). On 3 February 2020 the president of the SAC responded to the applicant by means of a letter indicating that the SAC did not have jurisdiction to examine the request in so far as it was related to events that had occurred prior to the appointment of L.D. as an SAC judge ( nuk ka per kompetencë dhe juridiksion shqyrtimin e kërkeses suaj ... pasi pretendimet tuaja i përkasin periudhës përpara emërimit të [L.D.] në funksionin e anëtarit të Kolegjit ). 36 .     Meanwhile, on 20 January 2020 the applicant lodged another request with the SAC on the basis of the same facts and arguments as those on which the first request had been based, whereby he requested that L.D. be excluded from examining his case (“the second request”). The applicant also pointed out that as a result of his criminal complaint against L.D. (see paragraph 15 above), the latter lacked impartiality to hear the applicant’s case. On 5   February 2020 the SAC, sitting as a different bench from that which was examining the merits of the applicant’s re-evaluation process, refused the second request on the same grounds as those set out in the previous paragraph – namely, that the SAC did not have jurisdiction to examine the request in so far as it related to events that had occurred prior to the appointment of the SAC’s members. It also concluded that the applicant’s criminal complaint against L.D. did not impact his impartiality to hear the case. 37 .     On 7 February 2020 the applicant lodged a constitutional complaint with the Constitutional Court requesting that the court declare unconstitutional Parliament’s decision appointing L.D. to the SAC (see   paragraph 14 above), as L.D. had not met the relevant eligibility criteria. 38.     Subsequently, at a public hearing of 11 February 2020 before the SAC, the applicant requested that the vetting proceedings against him be stayed until the Constitutional Court had delivered a decision on his complaint and until the criminal proceedings against L.D. (which at the time were ongoing) had come to an end. The SAC refused the request. 39.     On 27 February 2020 the SAC, after considering the parties’ written submissions and undertaking a fresh reassessment of the evidence in the case file, overturned the IQC’s decision and dismissed the applicant from his office with immediate effect. The SAC held that, on the basis of a “financial analysis” that it had conducted, the applicant had made an inaccurate and insufficient declaration of the assets belonging to him and persons related to him. It further found that, owing to a commercial agreement entered into by the applicant and a petrol company, there had been a conflict of interest with his position as sitting prosecutor that had undermined the public’s trust in the justice system. 40.     Two judges appended a concurring opinion to the SAC’s decision, arguing that they disagreed with the weight that the majority had granted to the applicant’s inaccurate declarations in respect of a car and a garage that he had purchased in the course of his career. Constitutional Court’s decision 41 .     In response to the applicant’s complaint (see paragraph 37 above), the Constitutional Court adopted decision no. 62 of 29   April 2020 rejecting as inadmissible the applicant’s challenge against L.D.’s appointment to the SAC. 42.     In so far as the complaint had been based on paragraph (e) of Article   131   §   1   of the Constitution, which provided the Constitutional Court’s jurisdiction to verify the eligibility and appointment of officers of constitutional bodies (see paragraph 45 below), the court held that individuals did not have standing to initiate such a constitutional review. It accordingly concluded that the applicant’s challenge against the appointment of a member of the SAC was incompatible rationae personae with the Constitution. 43 .     In so far as the applicant had complained under paragraph (f) of Article   131 § 1 of the Constitution (ibid.) that L.D.’s appointment to the SAC in breach of domestic law had violated the applicant’s individual right to a “tribunal established by law” in the course of the vetting proceedings, the Constitutional Court dismissed the complaint, reasoning as follows: “20. Returning to the present case, the [Constitutional Court’s] Bench notes that the applicant alleges a violation of his right to a fair hearing by virtue of an act undertaken by a public authority before the end of the proceedings before the SAC, and, consequently, does not raise any claim against the final outcome of the [vetting] process. He challenged ... the appointment [of L.D. to the SAC] and [requested] the partial invalidation of the decision of the Parliament which appointed L. D. as a member of the SAC. 21. The Constitutional Court has emphasised that the right to fair hearing, including complaints related to a tribunal established by law, is guaranteed during a legal or judicial process, in connection with the final result [“ ne funksion të rezultatit përfundimtar ”] which generates concrete and direct consequences for applicants as holders of procedural and substantive constitutional rights. The Bench considers that in the process of transitional re-evaluation too, the procedural rights of the individuals being re-evaluated should be guaranteed within the judicial process conducted by the Special Appeal Chamber, according to the competencies assigned to them by the Constitution and the law. ... 23. Furthermore, the Bench notes that the jurisdiction of the Constitutional Court in reviewing the individual constitutional complaint of the applicant in respect of his re-evaluation process as a prosecutor, is limited by the powers that the Constitution itself, in its annex, has conferred to the re-evaluation bodies. Thus, Article 179/b, paragraph 2 of the Constitution provides that the re-evaluation process, which is carried out by the IQC and the SAC, will be based on the principle of a fair hearing as well as respect for the fundamental rights of the individuals being re-evaluated. ... 24. The Bench reiterates that the constitutional procedural rights [...], including the right to a “tribunal established by law”, have been guaranteed by the Constitution to the individuals being re-evaluated, by virtue of the judicial process carried out by the SAC and, subsequently, by virtue of the possibility of exercising the right to complain to the European Court of Human Rights . In view of the powers of the SAC to hear appeals against the decisions of the IQC, the court has held that this [appeal] process includes a review of the compatibility of the proceedings with the Constitution ... ” RELEVANT LEGAL FRAMEWORK AND PRACTICE Relevant domestic law Constitution 44 . The relevant parts of Articles 127 and 128 of the Constitution, as amended in 2016 read as follows: “ Article 127 1. The term of Constitutional Court judges shall end when: ... d) it is established that he/she fails to comply with the eligibility and incompatibility requirements; ... Article 128 ... 2. Disciplinary proceedings against a judge [of the Constitutional Court] shall be conducted by the Constitutional Court, which shall order the dismissal of that judge if he or she: ... b) has been convicted by a final court judgment of the commission of a crime.” 45 . Article 131 of the Constitution, as amended in 2015 and 2016, reads as follows: “The Constitutional Court decides on: ... (e) the matters related to the eligibility and incompatibilities in the exercise of their functions of the President of the Republic, the members of the Parliament, the officers of the bodies provided for in the Constitution, as well as [matters related] to the verification of their appointment. ... (f) the complaints of individuals against any acts of the public authorities or judicial decisions violating the fundamental rights and freedoms guaranteed by the Constitution, after all effective legal remedies for the protection of those rights have been exhausted, unless otherwise provided by the Constitution.” 46.     Pursuant to Article 179/b § 5 of the Constitution, the SAC was established as one of the chambers of the Constitutional Court for a period limited to nine years. 47 .     Under Article C § 3 of the annex to the Constitution, judges of the SAC have the status of judges of the Constitutional Court. 48.     Article F § 8 of the annex to the Constitution provides that persons being vetted have the right to complain ( ushtrojnë ankim ) to the European Court of Human Rights. The Transitional Re-evaluation of Judges and Prosecutors Act (Law no. 84/2016 – “the Vetting Act”) 49 .     Under section 4(6), the vetting bodies may apply the procedures provided in the Code of Administrative Procedure (Law no. 44/2015 as amended) or the Administrative Courts Act (Law no. 49/2012, as amended) when they deem it appropriate and when a certain procedure is not provided by the Constitution or the Vetting Act. 50 . Section 6(1) (dh) of the Vetting Act reads: “ Section 6 – Conditions for the appointment of members of the re-evaluation institutions 1. An Albanian citizen may be appointed as a member of the [Independent Qualification] Commission or [Special] Appeal Chamber if he fulfils the below-stated conditions: ... c) [he/she] has received positive evaluations of his professional skills, ethics and moral integrity, in the event that he has been subjected to previous evaluations; ... dh) there has been no instance of the disciplinary measure of dismissal from office [undertaken] against him, or any other disciplinary measure that is still in force, pursuant to the legislation at the time of his applying [for a position on the vetting bodies];” Status of Judges and Prosecutors Act (Law no. 96/2016, as amended) 51 .     The Status of Judges and Prosecutors Act, which entered into force on 22   November 2016, lays down the rules regarding the status of “magistrates” ( magjistratët ) – that is to say of judges and prosecutors. 52.     Section 28 provides the conditions that an individual must meet in order to be appointed as a magistrate; point (dh) thereof provides that a person has the right to apply for admission to the initial training course for magistrates if he or she has not been dismissed from an office on disciplinary grounds and is not subject to any disciplinary sanction that is still in force. 53 .     Section 66 of the Act reads: “ Section 66 - Ineligibility and Incompatibility 1. The status of [a person as] a magistrate shall end on the day when the competent authority establishes the causes of ineligibility as follows: a) The magistrate does not fulfil the criteria set out in Article 28 of this Act; b) The appointment decision is invalid and does not generate any legal consequences and is declared null and void. ... 4. The [High Judicial] Council shall adopt a decision declaring the termination of a person’s status [as a magistrate] no later than two weeks of it being notified of the grounds for [that person’s] ineligibility or incompatibility. 5. The decision shall state the date of the ending of the person’s status as magistrate, as set out in paragraph 1 or 2 of this Section. 6. Any action carried out by the magistrate following this date shall be invalid and it shall be deemed to have brought no legal consequences and be considered null and void.” 54 .     Section 150(3) states that the disciplinary sanction of dismissal from office imposed on judges and prosecutors will not be expunged or erased from the register of disciplinary sanctions kept by the responsible authorities. The 2008 Judiciary Act (Law no. 9877/2008 of 18 February 2008 on the organisation and functioning of the judiciary, as amended - in force until 22 November 2016) 55 .     The relevant sections of the 2008 Judiciary Act read as follows: “ Section 32 - Disciplinary violations 1. Disciplinary violations by judges are divided into the following categories: a) very serious; b) serious; c) minor. ... Section 33 - Disciplinary measures 1. Disciplinary measures are imposed in fair proportion to the violation committed. 2. The disciplinary measures that may be imposed are: a) a reprimand; b) a reprimand with a warning; c) temporary demotion to a lower-level court for a period of one to two years; ç) a transfer for one to two years to a court of the same level outside the judicial district to which the judge [in question] was appointed; d) dismissal from office. 3. For very serious violations ... the disciplinary measure [of dismissal from office] provided in point “d” of subsection 2 of this section shall be imposed. 4. For serious violations ..., the disciplinary measures provided in points “c” and “ç” of subsection 2 of this section shall be imposed. 5. For minor violations ..., the disciplinary measure provided in points “a” and “b” of subsection 2 of this section shall be imposed. 6. For the purposes of disciplinary proceedings, serious disciplinary measures are removed [from the record of the person concerned] within three years of the date on which they were imposed if no other disciplinary measure has been imposed, while minor disciplinary measures are removed within two years from the date on which they were pronounced if no other disciplinary measure has been imposed.” Other relevant provisions 56 .     Article 494 § (ë) of the Code of Civil Procedure provides that a party may request the revision of a judgment that has become final in the event that the European Court of Human Rights finds a violation of the Convention or those of its protocols that have been ratified by Albania. 57 .     Paragraph 3 of section 71/c of the Constitutional Court Act (Law no.   8577 of 10 February 2000, as amended by Law no. 99/2016) provides that following a judgment by an international court finding that a decision of the Constitutional Court has violated a party’s basic rights and freedoms, the interested party may apply for the reopening of the proceedings in question before the Constitutional Court. Under paragraph 5(b) of that same section, such an application shall not be allowed if the international court granted just satisfaction but did not indicate that the domestic proceedings in question should be reopened. 58.     The other relevant provisions of domestic law and practice have been set out in Xhoxhaj , cited above, §§ 93-209. Relevant domestic practice The Constitutional Court’s case-law 59 .     By decision no. 59 of 23 December 2014 the Constitutional Court rejected a complaint lodged by several members of parliament who had sought, inter alia , that the court declare unconstitutional three decisions of Parliament dismissing the director – and subsequently appointing a new director – of the High Inspectorate for the Declaration and Audit of Assets and Conflicts of Interest (an independent administrative body). The court found, inter alia , that rather than being general regulatory acts the impugned acts had been individual decisions relating to the dismissal of a public officer; therefore, any assessment of their compatibility with the Constitution fell under the jurisdiction of the regular administrative courts, before which proceedings had indeed already been initiated by the interested party. THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE RIGHT TO A TRIBUNAL ESTABLISHED BY LAW on account of L.D.’s sitting on the special appeal chamber BENCH 60 .     The applicant complained under Article 6 § 1 of the Convention that his civil rights and obligations had not been determined by a “tribunal established by law”, given that L.D. (who had sat on the SAC bench that had heard the applicant’s case) had been appointed to office in violation of domestic law. 61.     The relevant part of Article 6 § 1 of the Convention reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Admissibility The parties’ submissions 62.     The Government submitted that according to the well-established case-law of the Constitutional Court (see paragraph 59 above), the constitutionality of individual (non-regulatory) acts – including Parliament’s decision to appoint the SAC member at issue in the applicant’s case – should have been challenged in the regular administrative courts rather than the Constitutional Court. Given that the applicant had failed to initiate such proceedings, in the Government’s view, he had failed to exhaust the available domestic remedies. 63.     In addition, the Government stated that the applicant’s complaint was manifestly ill-founded. 64.     The applicant submitted that he had exhausted the available domestic remedies by raising the issue of the unlawful appointment of judge L.D. separately before, respectively, the SAC and the Constitutional Court, both of which had declined to examine his allegations. He argued that the administrative courts had no jurisdiction to rule on whether a judge had been appointed to the SAC in accordance with the law and pointed out that the constitutional case-law cited by the Government concerned a challenge against the appointment of an officer to an administrative body, and was therefore not relevant to the instant case. The Court’s assessment 65.     As a preliminary remark, the parties did not dispute, and the Court agrees, that Article 6 § 1 of the Convention applicable under its civil head to the proceedings in respect of the vetting of the applicant (see Xhoxhaj   v.   Albania , no. 15227/19, § 288, 9 February 2021). 66.     Turning to the exhaustion of domestic remedies, the Court reiterates that the rule referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against the State before an international judicial body to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies that are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see   Vučković and Others v.   Serbia (preliminary objection) [GC], nos.   17135/11 and   29   others, § 70, 25   March 2014). 67 .     It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement   (ibid., § 77). 68.     Turning to the present case, the Court notes that the Government did not respond to the applicant’s specific contention that it was not for an administrative court of first instance to rule on the lawfulness of the appointment of a judge to the SAC, one of the highest courts in the country. The Court shares the applicant’s doubts in this respect. 69.     Be that as it may, the Court agrees with the applicant’s argument that the case-law relied on by the Government does not appear to be relevant, as it concerned the dismissal and appointment by Parliament of an officer of an administrative body, whereas the applicant’s complaint concerned a judge of the SAC, which is a judicial and constitutional body (see paragraph 59 above) whose judges have the status of judges of the Constitutional Court (see paragraph 47 above). Moreover, the Government did not cite any judgments delivered by an administrative court of first instance that had served as an effective remedy in situations comparable to that of the applicant. 70.     Most importantly, the Court notes that the SAC and the Constitutional Court – in which the applicant brought proceedings in respect of this matter and which thus had the possibility to apply the allegedly well-established case-law cited by the Government – did not refer to that jurisprudence or point to the administrative court of first instance as a remedy to be used by the applicant. Neither did they identify any non-exhaustion issue in respect of the applicant’s actions. 71.   &#