CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 décembre 2022

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font-family:Arial } .sFBC99493 { font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .sA04AE28A { width:35.22pt; display:inline-block } .sE13162EA { width:134.76pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right }     THIRD SECTION CASE OF NIKËHASANI v. ALBANIA (Application no. 58997/18)     JUDGMENT   Art 8 • Private life • Justified dismissal of prosecutor from office due to serious doubts as to her financial propriety based on findings of vetting process • Proportionate lifetime ban from re-entering justice system for serious ethical violation     STRASBOURG 13 December 2022     FINAL   22/05/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Nikëhasani v. Albania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Pere Pastor Vilanova , President ,   Georgios A. Serghides,   Jolien Schukking,   Darian Pavli,   Peeter Roosma,   Ioannis Ktistakis,   Andreas Zünd , judges , and Milan Blaško, Section Registrar, Having regard to: the application (no.   58997/18) 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 Besa Nikëhasani (“the applicant”), on 17 December 2018; the decision to give notice of the application to the Albanian Government (“the Government”) and to grant priority under Rule 41 of the Rules of Court; third-party comments received from Res Publica and the European Commission, which had been granted leave by the President of the Section to intervene in the written procedure (Article 36 § 2 of the Convention and Rule   44 § 3 of the Rules of Court); Having deliberated in private on 22 November 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns re-evaluation proceedings in respect of the applicant, then a serving prosecutor, under Law no. 84 of 30 August 2016 (“the Vetting Act”). The proceedings resulted in her dismissal from the post. THE FACTS 2.     The applicant was born in 1971 and lives in Tirana. She was represented by Mr A. Saccucci and Ms G. Borgna, lawyers practising in Rome. 3.     The Government were initially represented by their Agent, Mr   A.   Metani, and, subsequently, Ms J.   Mansaku, Ms E.   Muçaj and Mr   O.   Moçka, General State Advocate. 4.     The facts of the case may be summarised as follows. 5.     The applicant was appointed to the post of prosecutor in 1993. Following the enactment of the Assets Disclosure Act in 2003 (see paragraph   24 below), she started to submit annual declarations of assets to the High   Inspectorate for the Declaration and Audit of Assets and Conflicts of Interest (“HIDAACI”). Vetting process in Albania 6.     In 2016 Albania embarked on comprehensive justice system reforms, 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 prosecutors (hereinafter “the vetting process”) (see Xhoxhaj v. Albania , no.   15227/19, §§ 4-7, 9 February 2021).   The vetting process was to be carried out by the Independent Qualification Commission (“the IQC”) at first instance and – in the event of an appeal – the Special Appeal Chamber (hereinafter “the SAC”) attached to the Constitutional Court (jointly referred to as “the vetting bodies”). The vetting bodies were to re-evaluate each serving prosecutor on the basis of three criteria: (i) an evaluation of assets, (ii) an integrity background check aimed at determining any possible links to organised crime and (iii) an evaluation of professional competence. At the conclusion of each set of re-evaluation proceedings, the vetting bodies were to give reasoned decisions confirming in office or suspending or dismissing from office the person being vetted. Proceedings in respect of the applicant Before the IQC 7 .     When the vetting process started, the applicant was serving as a prosecutor at the prosecutor’s office attached to the Shkodër Court of Appeal ( Prokurorisë së Gjykatës së Apelit ). In January 2017 she submitted the vetting declarations required by law. She declared, inter alia , the following major assets: (a)     a flat of 144 sq.m. in Tirana purchased in 2009 for 90,000 euros (EUR) with her family’s savings ( kursimet familjare ) over the years; proceeds from the sale of several plots of land in 2008 and 2010; and a bank loan of 7.1   million Albanian leks (ALL), indicated as equivalent to EUR 50,000; (b)     a flat of 76 sq.m. in Lezhë acquired under a contract in 2010 for EUR   28,000 with EUR 25,000 received in 2010 from a construction company, under an agreement, following the demolition of another dwelling in Lezhë acquired in 1998 and owned by the family; and EUR   3,000 from the family’s savings in 2009; (c)     a commercial service unit ( njësi shërbimi ) with a surface area of 150   sq.m. in Lezhë received under the above-mentioned agreement in 2011; and (d)   a Toyota vehicle purchased for EUR 19,500 in 2016 with EUR   12,000 received under a loan contract with a private individual, A.M.; EUR   4,000 received from the sale of another car under a contract in 2016; and the family’s savings in 2015 and 2016. 8 .     Because of the applicant’s candidacy for the High Prosecutorial Council, the governing body of the Prosecution branch, she was added to the priority list of persons to be vetted. On 30 November 2017 lots were drawn before the IQC for the panel which would re-evaluate the applicant. 9.     HIDAACI provided the IQC with a report concerning the evaluation of assets (see paragraph 28 below), concluding that the applicant’s disclosure was accurate, in compliance with the law, supported by lawful financial sources and that there was no conflict of interest, no lack of lawful financial sources to justify the assets, no concealment of assets and no false declaration. 10 .     The IQC proceeded with an in-depth administrative investigation in relation to one of the three re-evaluation criteria, namely the evaluation of assets, with reference to, inter alia , other evidence such as the applicant’s prior annual declarations. On 15   December 2017 the IQC sent her a first follow-up questionnaire, requesting clarifications regarding certain assets and her children’s education costs. The applicant provided the additional information within the prescribed time-limit. On 31 January 2018 the IQC sent a second follow-up questionnaire, requesting the applicant, inter alia , (i)   to submit the contract under which the ownership of the flat in Lezhë had been acquired, with a clear indication of the year of purchase, surface area and purchase price; supporting documents ( dokumentacion provues ) as to the income used for that acquisition; the notarial deed under which the applicant had benefited from the EUR 25,000 received from the construction company; and (ii) to provide information on the exact date she had received the proceeds from the sale of the plots of land by her mother-in-law used for the same purchase. The applicant replied on 8   February 2018 and submitted several documents. On 13 February 2018 the IQC sent a third follow-up questionnaire, requesting additional information. The applicant replied on 20   February 2018. 11.     On 13 March 2018 the IQC concluded the administrative investigation. On 14 March 2018 it informed the applicant of the conclusion of the investigation based solely on the assets assessment and provided her with its preliminary findings together with HIDAACI’s report and other documents from the case file. 12.     The IQC’s preliminary findings were as follows. (a)     As regards the flat in Tirana, the applicant had not listed two garages in her vetting declaration and had not proven the source of ALL 752,880 used to pay part of the purchase price and that she had had sufficient savings to pay the remainder. (b)     The applicant had had insufficient income to acquire the flat and service unit in Lezhë, and to justify the purchase of the vehicle in 2016. The IQC shifted the burden of proof to the applicant in relation to those assets and issues, and gave her a twenty-day time-limit to submit arguments in response and supporting documents. 13.     On 3 April 2018 the applicant filed her submissions, addressing the issues earmarked by the IQC and providing documents in support of her arguments. She explained that the garages had not been included in the vetting declaration owing to a mistake and that there had been no intention to conceal those assets, as unequivocally proven by the fact that she had submitted a complete copy of the purchase agreement which expressly mentioned the garages. She clarified that most of the purchase price had been paid for with the bank loan and the remainder with savings, including the proceeds of the sale of the plots of land owned by her mother-in-law. She explained that those proceeds had been received by her mother-in-law in 2008. As to the properties in Lezhë, the applicant explained that her family had bought a flat in the city in 1998. Owing to issues with the construction permit, the building had been demolished. The construction company had compensated her family with EUR 25,000, which had then been used to buy another flat, and with ownership of the service unit. In relation to the purchase of the car in 2016, the applicant explained that it had been paid for with savings and a loan from her husband’s friend, A.M. 14.     On 10 April 2018 the IQC informed the applicant that a hearing was scheduled for 17 April 2018. At the hearing, she provided further explanations regarding the issues raised by the IQC. 15 .     By decision no. 15 of 20 April 2018, the IQC dismissed the applicant from office for having declared total assets with a value of more than twice her legitimate income. According to the IQC, she had made inaccurate statements in her annual declarations and her vetting declaration; failed to prove lawful sources to justify certain assets, attempting to retrospectively justify them with recently drawn up documents; and concealed assets in small amounts. The IQC made the following findings. (a)     While the applicant had submitted a complete copy of the purchase agreement in respect of the flat in Tirana, she had nonetheless failed to list two garages in her vetting declaration. She had not provided evidence that in 2008 her mother-in-law had given her or her husband the sum of ALL   752,880, the proceeds of the sale of the two plots of land subsequently used to pay part of the purchase price for that flat. She had therefore made a false statement. On the basis of an estimate of expenses incurred in 2004-11 by her family (including three children and, possibly, the mother-in-law residing with the family) and taking into account other expenses such as travel to her place of work in Shkodër, there were “reasonable doubts” that ALL   108,750 per month for the family’s living expenses (as asserted by the applicant) was enough, and it was even less likely that the applicant could have accrued savings of ALL   2,019,700 to pay the remainder of the purchase price. (b)     As to the flat and service unit in Lezhë, while the applicant had declared EUR 25,000 in her 2010 annual declaration, the fact remained that she had no document to prove (in accordance with the requirements of the Civil Code) ownership of the flat which had been demolished and in relation to which she had then acquired those properties. The notarial agreement signed in 2011 between the construction company and the applicant’s husband, laying out the terms of compensation for the demolished flat, was insufficient to prove that she had had title to it. It was also noted that she had not declared that first flat in her first annual declaration, which was inexcusable for a prosecutor with some ten years’ service at the time; that she had provided inconsistent information in 2004 and in the vetting declaration in 2017 about its year of purchase, value, surface area and the sources of income used for its acquisition; and that there had been a failure to declare ALL   2,100,000 in relation to that flat. (c)     After the Toyota vehicle had been imported to Albania with a declared value of EUR 23,900 and the relevant tax had been paid on that amount, two weeks later, in August 2016, the applicant’s husband had paid EUR 19,500 to purchase it. In the absence of any convincing explanation, that could amount to an unjustified transaction. The sum of EUR   4,000 from the sale of the old car had only been received in September 2016. A.M. had made contradictory statements about the origin of EUR 12,000 he had lent the applicant’s husband and, according to the available evidence, had not had sufficient legal income to do so. Before the SAC 16.     On 4 June 2018 the applicant lodged an appeal with the SAC, arguing as follows. (a)     At no stage of the proceedings did the IQC raise the issue that she had declared assets amounting to more than twice her lawful income, so the final decision had taken her by surprise. She claimed a breach of her fair trial rights on account of her inability to defend herself in relation to that issue, which was decisive for the outcome of the case. (b)     The IQC disregarded HIDAACI’s findings and carried out its own economic and financial assessment of her wealth without having the requisite expertise to do so. The conclusions reached by the IQC in that regard were unsubstantiated. (c)     Her dismissal from office was manifestly disproportionate, considering the lack of any intention to conceal assets and the minor issues in her vetting declaration. (d)     The IQC’s findings regarding the gift from her mother-in-law were mistaken. The sales agreement for the plots of land stated that her mother-in-law had received that money in 2008. That money was subsequently given to the applicant and her husband, as proven by the fact that she had declared it in her annual asset declarations from 2008 onwards. (e)     The properties in Lezhë had been acquired following the settlement concluded with the construction company in relation to the demolished flat she had previously owned. In 2010 her husband and the company had concluded a preliminary settlement, following which he had received EUR   25,000 in compensation. That agreement had been formalised in a written document in 2011, which acknowledged payment of the above amount and added, as further compensation, ownership of the service unit. (f)     The IQC had placed an unreasonable burden upon her of proving that another person, A.M., had had legitimate income to lend her a small sum to purchase the second-hand vehicle. 17.     The applicant submitted additional evidence in support of her pleas. It appears that she submitted a request to have documentary evidence admitted to the file as regards the proceeds of the sale of the two plots of land and ownership of the demolished flat in Lezhë. She also presented an expert report containing a calculation of her income and expenses over the years, with a view to refuting the IQC’s findings. 18.     By a procedural decision, the SAC dismissed her request to admit new evidence because no adequate reasons had been provided as to why she had failed to present it before the IQC, and, in any event, following a preliminary assessment, it was seemingly irrelevant for deciding the appeal. According to the applicant, she was not notified of that procedural decision during the appeal proceedings. 19.     The applicant filed further submissions on 20 and 28 June 2018. On 7   September 2018 she adduced further evidence, including a notarised statement by A.M. and a bank receipt, with a view to proving that she had repaid a substantial part of that loan. It appears that the SAC did not rule on her request at that time. 20 .     By decision no. 6 of 12 September 2018, the SAC panel upheld the decision of 20 April 2018. (a)     It stated that it had rejected the applicant’s requests to introduce additional evidence. It dismissed her contention that she had not been notified by the IQC of the “accusation” of having assets of an amount more than double her legitimate income because that conclusion was a foreseeable consequence of the issues earmarked as problematic at the end of the administrative investigation and could only be reached as the final outcome of the evaluation of the assets. The SAC stated that the IQC’s decision to disregard HIDAACI’s findings and rely on its own understanding of the evidence was legitimate. It further held that inconsistencies or serious omissions in the vetting declaration could justify dismissal from office even in the absence of a subjective element of liability, and that the IQC’s decision to close the preliminary investigation only in respect of the assets was legitimate. (b)     The SAC upheld the conclusions reached by the IQC on the merits: that the applicant’s vetting declaration was not accurate and that she had repeatedly committed errors and inaccuracies in her statements; that there were insufficient lawful financial resources to justify the acquisition of the major assets; that there was a lack of lawful financial resources for the assets she owned, and a lack of legal documentation regarding ownership of the resources claimed; and that she had concealed assets and made a false statement. (c)     The SAC upheld the IQC’s finding that the overall wealth twice exceeded the income assessed as lawful on the basis of all the explanations and evidence presented by the applicant, and all the data collected during the investigation and disclosed to her. That conclusion was the logical consequence of the reasoning relating to each asset and of the comparison between the amount of wealth accumulated over the years and declared in the vetting declaration in 2017 and the assessment of the lawfulness of the sources of income. The applicable constitutional and other provisions did not link the insufficiency of the declaration to the subjective elements of intent to conceal assets. The applicant had to convincingly explain the legitimate source of assets and income and could not conceal, or inaccurately present assets owned, possessed or used. Under section 4   of the Vetting Act, the decision could be made based on one or more criteria or an overall evaluation of all three criteria. Having started the investigation for all three criteria and having completed the part for the wealth criterion, the IQC had regard to the probative value of the evidence gathered and decided to limit the assessment to that criterion. The IQC had shifted the burden of proof to the applicant, who was (made) aware that that only concerned the wealth assessment. The constitutional and other relevant provisions provided for disciplinary measures, even based on one criterion. 21.     The SAC panel made the following findings in relation to the main assets. (a)     The flat in Tirana had been declared as purchased for the equivalent of EUR 90,000 (ALL 12,345,300), paid for with the family’s savings over the years, proceeds from the sale of the plots of land and a bank loan equivalent to EUR 50,000 (ALL 7,100,000). In a contract dated December 2009 entered into by the applicant’s spouse, EUR 80,000 was specified as the price for the flat and EUR 10,000 as the price for two garages. In her declaration in 2009, the applicant had only declared the flat. In 2010 she had declared both for the total amount of EUR   90,000. According to data from the Tirana Real Estate Registration Office, the two garages were registered as separate assets. The assets declaration required a detailed description of all assets accumulated over the years until the date of declaration. The IQC had therefore rightly concluded that the applicant had not been accurate in her vetting declaration as regards the two garages. As to the proceeds from her mother-in-law’s two plots of land in 2008 for ALL 376,400 each, under a notarial deed of gift dated 22 August 2013 she had given them to her son, the applicant’s spouse. The applicant had submitted no (other) documentary evidence with her declaration in 2008 or assets declaration in 2017 confirming the transfer of the proceeds. The deed of gift indicated 22   August 2013 as the date of gift, which contradicted the statements made in the 2008 and 2017 declarations that the applicant and her spouse had benefited from the proceeds in 2008. Having examined a statement from the notary in March 2018, the IQC had rightly dismissed the argument asserting that the notary had made a mistake when editing the document in 2013. The notary admitted the mistake; he did this five years later (after the gift) and did so in the absence of the person gifting the sum and in violation of the applicable legislation allowing for editing when the legal document was being drafted to be signed by the parties/party. The IQC was justified in concluding that the applicant had made a false statement regarding the source of income arising from the sale of the plots of land by her mother-in-law, in an attempt to prove the lawful source of income used to purchase the flat. As to the proceeds from the sale of another plot of land of 2,040 sq.m. in 2010 as a source of income for the flat, in her declaration in 2010 the applicant had declared that sale by her mother-in-law. However, in the 2008 declaration the remaining land owned by her was 1,500 sq.m. The applicant had not submitted any documents with her 2017 assets declaration confirming the transfer of the proceeds from her mother-in-law to her or her spouse. Her mother-in-law had not been listed in the family certificates as part of the applicant’s family. Even accepting that she had been residing with them at the time, she had been free to dispose of the proceeds. It remained incumbent on the applicant to convincingly prove, under Article D § 3 of the Annex to the Constitution, that she had benefited from that money (see paragraph 27 below). As to the family’s savings, it appeared from the annual declarations that they had been used to pay for that flat as follows: EUR   10,000 in 2009, EUR   20,000 in 2010 and EUR 10,000 in 2011, totalling ALL   5,530,900. The applicant had declared no savings between 2003 and 2006. She had declared ALL   6,365,920 in family savings between 2007 and 2011: ALL   300,000 in 2007; ALL 1,700,000 in 2008; ALL 1,300,000 in 2009; ALL   1,677,620 (ALL 1,400,000 and EUR 2,000) in 2010; and ALL   1,388,300 (ALL 1,250,000 and EUR 1,000) in 2011. However, based on the income stated by her in the annual declarations for 2007-11, less the estimated living expenses according to official data published by the Albanian Institute of Statistics for that period, the actual savings for each year had to be as follows: ALL 149,568 in 2007; ALL   2,068,880 in 2008; ALL   132,182 in 2009; minus ALL 650,918 in 2010; and minus ALL   83,141 in 2011. By comparing the savings estimated as above with those stated by the applicant in the annual declarations, the unjustified differences were as follows: while for 2008 she had declared less than she could save in the amount of ALL 368,380, for 2007 and 2009-11 she had declared more than she could save in the following amounts: ALL 150,432 in 2007; ALL   1,167,818 in 2009; ALL   2,328,538 in 2010; and ALL 1,471,441 in 2011. The total sum of ALL 4,749,349 could therefore not be lawfully justified as savings. In other words, she could only justify the difference as a reasonable amount of savings. (b)     As to the Toyota vehicle, the SAC upheld the IQC’s findings relating to the purchase price. Furthermore, according to data from the Directorate for the Prevention of Money Laundering, EUR 12,000 had been declared as having originated from A.M.’s family savings and work income. It appeared from the official data that A.M. had not had sufficient resources, on the basis of income earned from work, to lend EUR   12,000 to the applicant’s family. Evidence submitted in 2018 to the effect that A.M. had received the money from his cousin in Greece contradicted the earlier data. It also seemed unconvincing that A.M. had received a loan of EUR   50,000 in 2016 to be repaid in 2017, and at the same time had lent part of that sum to the applicant’s husband to be repaid in 2018. The applicant had not submitted any proof of having actually received EUR   12,000 either. According to the contract for the sale of the old car in September 2016, the EUR 4,000 purchase price had been paid on an unspecified date. There was no appropriate proof of the actual payment of that amount, in particular prior to the purchase of the Toyota vehicle. A notarised statement drawn up in   March 2018 indicated that the sum had been paid in July 2016 and that the parties had then formalised their transaction through a contract. Thus, there was no proof that the applicant had EUR 4,000 from the sale of the old car and then used it to purchase the Toyota car. She had made a false statement and failed to prove the legality of that amount. (c)     In her vetting declaration, the applicant had omitted to declare the sale of another car in 2008, thereby concealing income of ALL   200,000. In the 2007 annual declaration, she had stated that she had lent ALL 300,000 to her brother-in-law, without any documentation to prove it. In her subsequent declarations or the vetting declaration she had not mentioned the repayment of that sum, which, in any event, she had had insufficient financial capacity to lend. She had therefore made a false statement. 22 .     Replying to the applicant’s complaint concerning the IQC’s finding that her wealth more than twice exceeded the lawful income, and after assessing all the relevant facts and all the evidence relating to her and her spouse’s assets from 2003 to 2016, the SAC panel concluded that the applicant had failed to prove the lawfulness of the following: (a)     the flat in Tirana – ALL 4,749,349 as that amount was above what the applicant could have reasonably saved during 2007-11, considering her lawful income. (b) the flat in Lezhë – ALL   3,418,000 (EUR   25,000) because the applicant had never had a document confirming her (ownership) title to the demolished flat; the service unit – ALL   6,000,000 for the same reason; (c)   The Toyota vehicle – EUR   16,000 (ALL 2,184,160) because A.M. had had no financial capacity to lend EUR 12,000 and the applicant had no documentary evidence to prove the source of the EUR 4,000 used for the purchase of that car. The SAC panel concluded that the applicant’s total family wealth was ALL   24,637,339, whereas her lawfully acquired wealth was ALL   8,772,156, that is, 2.8 times less. Referring to Article D §§ 3 and 4 of the Annex of the Constitution, section   33 and section 61(1) and (3) of the Vetting Act (see paragraphs 27 and 35 below), the SAC panel upheld the disciplinary measure imposed by the IQC’s decision of 20   April 2018. Further information 23 .     After the Government were given notice of the application, in 2020 the applicant informed the Court that in 2018 she had applied to the National Chamber of Advocates (the Bar Association) seeking to “enrol” as an advocate. According to the Government, she merely filed a request for information about the relevant legislation. By a letter of 9   November 2018, the President of the Chamber replied as follows: “Subject: a reply In response to your request filed with us through your letter for information [ në përgjigje të kërkesës depozituar pranë nesh nëpërmjet shkresës tuaj për informacion ] regarding the exercise of the profession of advocate and the right to take the [relevant] examination, we inform you as follows.   - Under Law no. 55/2018 ..., the exercise of the profession of advocate is a right of any Albanian or foreign citizen who meets the criteria set out in sections 13 and 14 of that [Act]. The most important part expressed in those provisions regulating the right to exercise the profession of advocate is the acquisition of the title of ‘advocate’, which, as defined in section 13 ... must be obtained by successfully passing the qualifying examination.   - Since you have not successfully passed the re-evaluation process for judges and prosecutors [ procesin e rivlerësimit kalimtar të gjyqtarëve dhe prokurorëve ], based on section 13(2)(e) ..., you are denied by law [ juve ju është mohuar me ligj e drejta ] the right to apply for the title of ‘advocate’ – and, consequently, the right to exercise the profession of advocate – until such time as the disciplinary measure is extinguished under [the] special legislation.” RELEVANT LEGAL FRAMEWORK AND PRACTICE Albanian law and practice Assets Disclosure Act (Law no. 9049 of 10 April 2003) as amended 24 .     Pursuant to section 4 of the Assets Disclosure Act, public officials are required to submit annual declarations to the High Inspectorate for the Declaration and Audit of Assets and Conflicts of Interest (“HIDAACI”) in respect of private interests, the sources used for their creation, as well as in respect of financial obligations, as regards, inter alia , immovable assets and real rights over them; movable assets, registrable in public registers; items of special value over ALL 300,000; financial obligations to legal and natural persons; personal income for the year, from salary or participation in boards, commissions or any activity that brings personal income; private interests that match, contain, are based on or originate from family or cohabitation relationships; any declarable expenditure, worth more than ALL 300,000, carried out during the year of declaration. 25 .     Under section 38 of the Act, false disclosure of assets ( deklarim i rremë ) constitutes a criminal offence under the applicable criminal law (Article 257/a of the Criminal Code). Vetting process 26.     For a summary of the applicable domestic law and other references, see Xhoxhaj v. Albania (no. 15227/19, §§   93-209, 9 February 2021). The provisions particularly pertinent to the vetting proceedings in the present case are as follows. Constitution of the Republic of Albania 27 .     Article D of the Annex to the Constitution reads as follows: Article D – Evaluation of assets “1. Persons to be vetted shall disclose their assets, and have them evaluated, in order to identify persons who possess or use more assets than can be lawfully justified, or those who have failed to make an accurate and full disclosure of their assets and those of related persons. 2. The person to be vetted shall file a new and detailed declaration of assets in accordance with the law. The High Inspectorate for the Declaration and Audit of Assets and Conflicts of Interest [HIDAACI] shall verify the declaration of assets and provide the [IQC] with a report concerning the lawfulness of the assets, as well as the accuracy and completeness of the asset disclosure. 3. The person being vetted shall provide convincing explanations concerning the lawful source of his or her assets and income. For the purposes of this law, assets will be considered lawful if the income has been declared and subject to the payment of taxes. Additional elements of lawful assets shall be determined by law. 4. If the person being vetted has [total] assets greater than twice the value of lawful assets, the person shall be presumed guilty [ fajtor ] of a disciplinary breach [ shkeljen   disiplinore ], unless [he   or she] submits evidence to the contrary. 5. If the person to be vetted does not file the declaration of assets within the time-limit prescribed by law, [he or she] shall be dismissed from office. If the person being vetted endeavours to conceal or make an inaccurate disclosure of assets in his or her ownership, possession or use, a presumption in favour of the disciplinary sanction of dismissal from office [ shkarkim ] shall apply and the person will be required to prove the contrary.” Vetting Act (Law no.   84/2016 on the transitional re-evaluation of judges and prosecutors) 28 .     Section 4(1) provides that re-evaluation is carried out on the basis of three criteria: an evaluation of assets, an integrity background check and an evaluation of professional competence. Section 4(2) provides that the IQC and the SAC are the institutions that decide on the final re-evaluation of persons to be vetted, and that the decision is made based on one or more criteria, an overall evaluation of all three criteria or an overall assessment of the proceedings. Under section 4(5), both the IQC and SAC exercise their functions as independent and impartial bodies, on the basis of the principles of equality before the law, constitutionality, lawfulness, proportionality and other principles guaranteeing the right to a fair hearing of the person being vetted. Under section 4(6), the vetting bodies may apply the procedures provided for in the Code of Administrative Procedure or the Administrative Courts Act (Law no.   49/2012; see for instance, paragraph 45 below) where those procedures are not referred to in the Constitution or the Vetting Act. 29 .     Section 30 states that the objective of the evaluation of assets is the disclosure and audit of assets, the lawfulness of the source used for their acquisition or creation, the fulfilment of financial obligations, including private interests, of the person being vetted and related persons. Under section   31(1), the person to be vetted must file a declaration of assets with HIDAACI. 30 .     Section 32 states as follows: “1. The person being vetted as well as related persons shall submit all supporting documents justifying the truthfulness of their statements concerning the lawfulness of the source [used for] the creation of assets. 2. If it is objectively impossible [ është në pamundësi objektive ] for the person being vetted to submit supporting documents proving the lawfulness of the creation of assets, the person shall certify to the vetting body that the supporting document is missing, lost or cannot be reproduced or obtained in any other way. The vetting bodies shall decide whether the absence of supporting documents is justified ... ... 4. The person being vetted and related persons, or other persons, who have been named as donors, lenders or borrowers, are obliged to prove the lawfulness of the source [used for] the creation of assets. 5. The IQC and Appeal Chamber may use as evidence prior annual asset disclosure declarations submitted to HIDAACI.” 31.     Section 33 states that HIDAACI is the institution responsible for verifying the declaration of assets. Under section 33(5), HIDAACI, upon completion of the evaluation, draws up a reasoned and detailed report stating whether (i) the disclosure is accurate, in compliance with the law, supported by lawful financial sources, and whether there is any conflict of interest; (ii) there is a lack of lawful financial sources to justify the assets; (iii) there has been a concealment of assets; (iv) the person being vetted has made a false declaration; (v) the person being vetted has been involved in a conflict of interest. 32.     Under section 45, the IQC, the SAC and international observers (appointed by the International Monitoring Operation) investigate and examine all facts and circumstances necessary for the re-evaluation proceedings. They may request information from any public authority. They administer documents attesting to the existence of actions, facts or another situation necessary for the conduct of the administrative investigation. 33.     Under section 49(1), the vetting bodies obtain legal documents, collect statements from the person being vetted, witnesses, experts and members of the public, and receive other written documents in order to determine the facts and circumstances of each case. Under section 49(6)(a), the vetting bodies may decline to admit new evidence if, for example, obtaining it is unnecessary. Under section 49(9), the vetting bodies provide reasons for rejecting a request to obtain new evidence. Under section 51, if the person being vetted fails to submit any evidence or the evidence made available is incomplete, the vetting bodies may decide on the basis of the evidence made available to them. 34 .     Section 52 requires the vetting bodies to be governed by the principles of objectivity and proportionality. If they reach the conclusion that the evidence collected during the administrative investigation in accordance with section 45 has a probative value ( kanë nivelin e provueshmërisë ), the person being vetted has the burden of proof to submit evidence or give other explanations to the contrary. 35 .     Under section 61, dismissal from office may be ordered if: “1. the person being vetted has declared [total] assets greater than twice the value of lawful assets belonging to him or her and related persons; 2. there are serious concerns about the integrity background check because the person being vetted has had inappropriate contact with individuals involved in organised crime, which renders it impossible for him or her to continue in his or her position; 3. the person being vetted has made an insufficient disclosure of assets and integrity background [declaration] under sections 33 and 39 of this Act; 4. as regards the evaluation of professional competence, the person being vetted is professionally unfit; 5. on the basis of the overall conduct [of the proceedings], within the meaning of section 4(2) ... the person being vetted has undermined public trust in the justice system and it is impossible to remedy the deficiencies by means of a training programme.” Status of prosecutors in Albania Constitution of the Republic of Albania 36 .     Article 148 of the Constitution (as amended by Law no. 76 of 22   July   2016) reads as follows: “1. The Prosecution Service carries out criminal prosecution and represents the accusation in court on behalf of the State. The Prosecution Service performs other duties defined by law. 2. The Prosecution Service is an independent body, which shall ensure the coordination and control of its actions as well as respect the internal independence of prosecutors to investigate and prosecute, in accordance with the law. 3. The Prosecution Service is organised and functions attached to the judiciary system [ pranë sistemit gjyqësor ] ...” Status of Judges and Prosecutors Act (Law no. 96/2016 on the status of judges and prosecutors) 37 .     Section 2 determines the status of “magistrates” ( magjistratëve ) , which extends to prosecutors and judges, except judges of the Constitutional Court. 38 .     Section 3 (“Fundamental Values”) reads as follows: 1.     A magistrate shall exercise [his or her] functions in accordance with the Constitution and the law. 2. A magistrate shall exercise the functions independently, on the basis of assessment of facts and interpretation of the law, in accordance with his intrinsic conviction, free of any extraneous influences, direct or indirect, from any side or for any reason. 3. A magistrate shall not establish inappropriate connections and shall not be under the influence of the executive or legislative power. A magistrate shall take all the measures in order to be and appear to be free therefrom. A magistrate shall immediately notify the Council and the Chairperson upon identifying any attempt of interference or undue influence on him or her. 4. A magistrate shall perform the judicial functions [ funksionet gjyqësore ] in an impartial manner, without bias and without prejudice. 5. The conduct of a magistrate shall, in the course of assuming his or her function and beyond its scope, guarantee the preservation and strengthening of public confidence in the justice system, the legal profession and parties who are the subject of proceedings. A magistrate shall exercise his or her functions in a fair, accurate, timely reasonable, conscious, cautious, dedicated and systematic manner, with objectivity, self-restraint and maturity.” Prosecutor’s Office Act (a)    Law no. 8737 of 12 February 2001 (as amended in 2003 and 2008) 39.     Under section 17 of the former Prosecutor’s Office Act (replaced by Law no. 97/2016 of 6 October 2016), to be appointed as a prosecutor, a person had to, inter alia , have a higher legal education, have completed the relevant course at the School of Magistrates and have high moral and professional qualities. 40 .     Disciplinary violations included, inter alia , actions that seriously discredited the prosecutor’s function or that, pursuant to the law, were incompatible with it (section 32). Such violations were punishable by a reprimand, a notice with warning of dismissal from office, demotion or dismissal from office (section 33). 41 .     The Constitutional Court stated that serious actions discrediting the official function included inappropriate and unworthy conduct either in the performance of official duties or outside the performance of those duties (decision no. 75/2002). (b)    Law no. 97/2016 of 6 October 2016 42.     Section 6 (“Independence of Prosecutors”) reads as follows: “1. In exercising their functions, prosecutors shall act, submit requests and make decisions independently, based on the principles of legality, objectivity and impartiality. 2. Prosecutors shall be subject to the general written instructions of higher prosecutors, in accordance with the provisions of this Act. 3. The law guarantees the independence and the autonomy required by prosecutors to make decisions in the exercise of their constitutional and legal functions, regardless of unlawful internal or external influence from any public or private authority.” 43 .     Under section 95, where a disciplinary violation ( shkelje disiplinore ) has been proven, the competent body imposes a disciplinary measure, in accordance with the provisions of the Civil Servants Act (Law no. 152/2013 on civil servants). Disciplinary measures include a reprimand ( vërejtje ), retention of up to one third of the full salary for up to six months, suspension of the right to promotion and dismissal from civil service (section 58 of the Civil Servants Act). Code of Prosecutors’ Ethics 44 .     The Code was approved on 19 June 2014 by Order   no.   141 of the Prosecutor General. It contains requirements based on high standards of professional conduct of prosecutors within and outside their professional activities ( inter alia , section 8 of the Code). Actions discrediting the prosecutor’s function ( veprime qe diskreditojne rende figuren e prokurorit ), within the meaning of Article 149 of the Constitution and section 32 of the former Prosecutor’s Office Act (see paragraphs 40-41 above), constitute violation of those requirements and may give rise to disciplinary proceedings (section 17 of the Code). Other relevant legislation and documents Administrative Courts Act (Law no.   49/2012 on the organisation and functioning of the administrative courts) 45 .     Section 47 provides that an appellant may not submit new facts or request new evidence on appeal, unless he or she can demonstrate that, through no fault of his or her own, it was not possible to submit those new f