SPAK: A State Within the State

by Renada Bici (Legal Examiner Desk)

An Albanian state institution received a foreign Justice Minister at its headquarters on 29 April. The Albanian Foreign Ministry was not informed. The episode is unusual in its visibility, less so in its dynamic. It illustrates what happens to independent institutions when their domestic legitimacy comes to depend on foreign approval, and it raises a question Albanian institutional architecture has not yet had to answer in plain view: what binds an institution that has accumulated more external prestige than it has internalized constitutional limits.

The note verbale of 20 April
The Embassy of the Republic of Austria in Tirana transmitted a note verbale to the Ministry for Europe and Foreign Affairs on 20 April. The note announced the forthcoming visit of Federal Justice Minister Anna Sporrer and requested the routine arrangements that accompany any visit at this level: airport courtesies, security coordination, protocol officer assignment. It identified one substantive meeting on the Albanian side, a bilateral with Justice Minister Toni Gogu. It identified no other.

Nine days later, on the afternoon of 29 April, the Albanian press carried a different account. shqiptarja.com filed at 14:16 with the headline Klodian Braho pret në SPAK ministren austriake të Drejtësisë and a photograph of the Chief Special Prosecutor receiving Sporrer at SPAK headquarters in Tirana. The piece described the meeting as a follow-up to the joint Albanian-Austrian operation against call centre fraud rings carried out earlier in April, and presented it as the substantive centerpiece of the Austrian visit. The Gogu meeting, when it received Albanian press coverage at all, was treated as the protocol obligation. The Braho meeting was treated as the news.

The Foreign Ministry learned of the SPAK meeting from the same press dispatch its citizens read. There had been no supplementary note from the Austrian Embassy. There had been no telephone call. There had been no briefing from SPAK to MFA on the visiting Minister’s program. A Justice Minister of an EU member state had been received by an Albanian state institution in Tirana, and the institution responsible for the conduct of Albanian foreign relations had been kept outside the room and outside the loop.

The diplomatic record and the press record are not the same record. The gap between them is the institutional question this episode raises.

What SPAK’s own statute permits
The Special Structure against Corruption and Organized Crime, known as SPAK, was established by Law 95/2016, Për organizimin dhe funksionimin e institucioneve për të luftuar korrupsionin dhe krimin e organizuar. The statute defines SPAK’s institutional scope, its prosecutorial competences, and the framework within which it engages with other state institutions, including foreign ones. The framework for international engagement is set out in Articles 22 and 23.

Article 22 establishes within SPAK a dedicated Sector for International Cooperation and Joint Investigations (Sektori për Bashkëpunimin Ndërkombëtar dhe Hetimet e Përbashkëta). The sector is described as “responsible for coordinating its work with the authorities of other states. The sector serves as liaison with foreign bodies in service of the progress of investigations or joint investigations.” The text is operative on three points. The function is coordination. The counterparty is “authorities of other states,” meaning sister agencies. The purpose is the progress of investigations.

Article 23 specifies the sector’s tasks. Article 23.1.a authorizes SPAK to “cooperate with competent authorities of other states and international organizations in accordance with international agreements” (bashkëpunon me autoritete kompetente të shteteve të tjera dhe organizatave ndërkombëtare në përputhje me marrëveshjet ndërkombëtare). The phrase “competent authorities” is doing legal work. In the international cooperation lexicon, competent authorities means prosecutorial bodies, judicial authorities, investigative agencies, conducting cooperation through formal instruments: mutual legal assistance treaties, Eurojust frameworks, joint investigation team agreements. It does not mean foreign Ministers. It does not mean executive officials of foreign states.

Article 23.1.ç closes the framework. It addresses what happens when SPAK’s international cooperation runs into matters that cannot be resolved at sister agency level. The provision states that the sector “informs about identified problems or debated issues, which cannot be resolved through consultations with the competent organs of another state or its representatives, informs without delay the Director of the Special Prosecution, who, if necessary, requests the opinion or assistance of the competent ministry” (nëse është e nevojshme, kërkon mendimin ose ndihmën e ministrisë kompetente).

The statute, in other words, contemplates a hierarchy. SPAK’s international cooperation is operational and case based. When operational cooperation encounters issues that exceed its scope, the Director of the Special Prosecution is required to seek the assistance of the competent ministry. The framework presupposes that SPAK operates within the Albanian foreign relations architecture, not parallel to it.

The 29 April meeting does not fit within this framework. Hosting a foreign Justice Minister at the headquarters of an Albanian prosecutorial body, in a meeting communicated to the public as substantive policy engagement, is not cooperation with a competent authority within the meaning of Article 23.1.a. It is engagement with a foreign executive official at political level. The SPAK statute does not authorize this kind of engagement. It authorizes the kind of engagement that took place during the call centre case in the weeks before, when SPAK and the Austrian Wirtschafts und Korruptionsstaatsanwaltschaft coordinated through Eurojust on a joint operation. That cooperation falls squarely within Article 23.1.a. It is a sister agency engagement under an international framework. The 29 April meeting is something else.

What the Foreign Service Law confirms
Law 23/2015, Për Shërbimin e Jashtëm të Republikës së Shqipërisë, establishes the architecture of Albanian foreign relations. Two of its provisions speak to the institutional question.

Article 6.2.d establishes that the Foreign Service “coordinates the foreign affairs activity of central and local institutions” (bashkërendon veprimtarinë me jashtë të institucioneve qendrore dhe vendore). Article 13.2.a establishes that the Ministry for Europe and Foreign Affairs “coordinates official positions with the Presidency, the Assembly, the Council of Ministers, other state institutions on questions of Albanian foreign policy” (bashkërendon qëndrimet zyrtare me institucionin e Presidentit, Kuvendin, Këshillin e Ministrave, institucionet e tjera shtetërore për çështje të politikës së jashtme të Republikës së Shqipërisë).

The two laws fit together coherently. The Foreign Service Law establishes a general principle: foreign affairs is a unified executive function, conducted through MFA, with all state institutions participating in coordination rather than substituting for it. The SPAK statute applies this principle to SPAK’s specific case: international cooperation operates through a designated sector, in accordance with international agreements, with consultation of the competent ministry when matters escalate beyond technical scope. Neither law contemplates an Albanian state institution receiving a foreign Justice Minister without the Foreign Ministry’s knowledge. The two laws read together produce the same answer the texts produce separately. The 29 April meeting was conducted outside the legal framework that governs it.

Why SPAK acts as if the law does not apply to it
SPAK knows the law. The institution employs senior prosecutors who teach at the Faculty of Law in Tirana, who publish in legal journals, who advise on the drafting of by-laws under the very statutes that establish their authority. Article 23 of Law 95/2016 is the institution’s own founding text. The question is not knowledge. The question is why the institution chose, in this case, to act outside the framework its own statute defines.

Three observations are available, none of them speculative.

The first is conceptual. SPAK was built by the 2016 justice reform to be insulated from executive direction in its prosecutorial decisions. That insulation is the institution’s constitutional core. It is also the right design. Over time, however, the institution has drifted from the narrow doctrine of prosecutorial independence into a broader self conception in which any external rule that touches it is treated as a potential threat to that independence. The MFA coordination obligation under the Foreign Service Law, and the consultation obligation under Article 23.1.ç of SPAK’s own statute, are not threats to prosecutorial independence. They apply to SPAK in its capacity as a state institution operating in foreign relations, not in its capacity as a prosecutor making case decisions. A prosecutor who refuses ministerial direction in case selection is doing the job. A prosecutor who refuses MFA coordination on a foreign Minister visit is asserting a competence the law does not grant.

The second is reputational. SPAK has accumulated, properly, a great deal of external legitimacy. The European Commission’s annual country reports praise it. Western embassies treat it as the most credible Albanian justice institution. That reputational capital has produced a permission structure: SPAK has discovered that it can do things other state institutions cannot, because its actions are read abroad as evidence of judicial reform rather than as administrative behavior. Hosting a foreign Justice Minister without MFA coordination produces a photograph that benefits SPAK’s external profile, communicated to Brussels as evidence of operational maturity. The transactional logic is clear. The legal logic is absent.

The third is consequence. The SPAK statute imposes the consultation obligation on the Director of the Special Prosecution. It does not specify a sanction. The Foreign Service Law imposes coordination obligations on state institutions. It does not specify a sanction either. There is no enforcement mechanism for institutional non coordination beyond political censure. The Foreign Minister can complain, on background, off the record, in private. He cannot fine SPAK. He cannot order the Chief Special Prosecutor to stop. The institutional architecture relies on internalized respect for the law, which in this case has eroded. Once an institution discovers that an obligation is unenforceable in practice, the obligation begins to feel optional in principle. This is a familiar pathology of state authority drift in young democracies, and it is not unique to Albania.

The mechanisms of reinforcement
The drift would not survive without partner state behavior that rewards it. This is the harder argument to make and the more important one. Three structural mechanisms, illustrated by the visit of 29 April, explain how partner state practice can sustain the institutional pattern.

The first is direct programmatic engagement that bypasses the Foreign Ministry. Western embassies and EU agencies frequently engage SPAK directly on training, technical assistance, intelligence sharing, and case coordination. Much of this is operational and proper; it falls within the sister agency carve out the law permits. But the line between operational cooperation and political level engagement has blurred over years of practice. When a Justice Minister of an EU member state visits SPAK as a substantive stop on a bilateral working visit, the engagement is no longer operational. It is political. And when it occurs without MFA coordination, the partner state has not merely failed Albanian protocol; it has chosen a side in an Albanian institutional question.

The second is the reputational economy of the EU enlargement file. Western embassies and Brussels itself reward SPAK in country reports, public statements, and bilateral readouts. The reward is deserved on the merits; the institution has produced cases that no other Albanian justice body has produced. But the architecture of these statements, which often praise SPAK while expressing concern about other Albanian institutions, creates an asymmetry that SPAK reads, correctly, as a hierarchy. Partners are telling SPAK, in effect, that it is more legitimate than the rest of the Albanian state. The institution responds rationally to the signal. It positions itself accordingly.

The third is selective protocol observance by partner missions. Some embassies in Tirana scrupulously route all institutional contact through MFA. Others do not. The pattern is not random. Embassies that treat SPAK as a peer institution to a foreign ministry route directly to SPAK. Embassies that treat SPAK as a domestic prosecutorial body within the Albanian state route through MFA. The Austrian behavior of 20 April places Vienna in the first category. The choice is observable. The selective notification is its artifact.

What serious states do at home
The case against the partner state pattern is sharpest when measured against the partners’ own practice within their own constitutional architectures.

Austria’s prosecution service operates under a detailed legal architecture that places foreign engagement within ministerial coordination. The Weisungsrecht, the directive power of the Justice Minister over prosecutors in individual cases, has been the subject of intense political controversy in Vienna for over a decade. Sporrer’s signature reform project, the establishment of a Federal Public Prosecutor’s Office to insulate prosecutorial direction from political authority, depends entirely on the prosecutorial body operating within a defined constitutional architecture, with clear coordination rules between the prosecution and the political authorities. If a foreign Justice Minister landed in Vienna and met directly with the WKStA without prior coordination through the Austrian Foreign Ministry, the response would be immediate. The Foreign Ministry would issue a démarche to the visiting country’s embassy. The WKStA would provide a written explanation to the Justice Ministry. The visiting Minister would receive a private but unmistakable rebuke through diplomatic channels. The Austrian press would cover the breach. None of this is hypothetical. It is the standard operating practice of a country that takes its constitutional architecture seriously.

Germany’s Generalbundesanwalt is institutionally independent in case selection but operates under explicit coordination requirements with the Federal Ministry of Justice and, on questions touching foreign relations, with the Auswärtiges Amt. A foreign Justice Minister meeting the Generalbundesanwalt without Foreign Office coordination would trigger a formal protocol response. The German term is straightforward: Protokollbruch. It is treated as a serious matter, not because the meeting itself is necessarily harmful, but because the architecture exists for reasons and selective observance of it erodes the system as a whole.

The United States is the strictest enforcer of the principle in the Western system. The State Department’s Office of the Chief of Protocol controls visiting Minister access to all US institutions as a matter of inter agency practice. A foreign Justice Minister meeting the Attorney General without State Department coordination would not happen, because the State Department understands that allowing direct foreign political level access to US institutions outside its coordination would erode the principle of unified executive authority over foreign affairs. The United States has historically demanded the same principle from its partners.

The pattern is not Western parochialism. France’s Parquet National Financier, Italy’s Procura Nazionale Antimafia, the United Kingdom’s Serious Fraud Office, all operate within architectures that subordinate political level foreign engagement to a single foreign affairs channel. Every serious state in the European and transatlantic system operates on the principle that prosecutorial independence in case selection is constitutionally distinct from foreign affairs competence. Independence does not extend to receiving foreign Ministers without Foreign Ministry coordination. The reason is not that prosecutors should be politically subordinate. The reason is that foreign affairs is a unified executive function, conducted through a single channel, and a state that allows multiple parallel foreign relations channels to develop discovers, eventually, that it has multiple parallel foreign policies. No serious country tolerates this drift, because every serious country has, at some point in its history, learned what the costs are.

The asymmetry is not only between what Sporrer is building in Vienna and what she did in Tirana. The asymmetry is broader. It is between the constitutional architecture every Western partner of Albania operates at home and the architecture they tolerate, and on occasion exploit, in Albania. The partners understand the principle perfectly well. They have chosen, in their dealings with SPAK, to operate as if it does not apply.

What earned SPAK its standing, and what now risks it
The 2016 justice reform built SPAK as a prosecutorial body insulated from executive direction in its case selection. That insulation is a constitutional good and the foundation of what the institution has achieved. The cases SPAK has brought, the convictions it has secured, the standing it has earned with European partners, are real. They are also conditional on the institution operating within the legal architecture that created it.

Article 23 of Law 95/2016 is part of that architecture. The Foreign Service Law is part of that architecture. The Albanian Constitution’s allocation of foreign affairs competence to the executive branch is part of that architecture. SPAK is not a parallel sovereign. It is a state institution whose authority derives from its statute and is exercised within the constitutional system that produced the statute. When SPAK receives a foreign Justice Minister without MFA coordination, and without invoking the consultation provision its own statute requires, it conducts itself as if its standing rested on its external relationships rather than on the legal framework that authorizes it.

A state within the state is not a structural compliment to SPAK. It is a description of what happens when an independent institution begins to take on functions that do not belong to it, and when foreign partners, operating on principles they would not accept at home, accept the drift. The IBAR cycle is precisely the wrong moment for this practice. The European Commission is currently measuring Albanian institutional coordination as part of the rule of law assessment that will determine when the country closes Cluster One. A Tirana that cannot route a visiting Justice Minister through its own foreign service is not a Tirana ready to demonstrate the institutional maturity Brussels is looking for.

The note verbale is not a courtesy. It is the constitutional channel through which Albanian sovereignty is exercised. Treating it as optional, on either side, is not friendship. The episode of 29 April was unusual in its visibility. The dynamic it illustrated is not.

Renada Bici is a Tirana-based lawyer practicing in civil, criminal, and administrative law. She holds a law degree from the University of Tirana and has experience in both private legal practice and public administration. She writes for the Tirana Examiner Legal Desk.