Where Else Could This Happen?

Albania’s prosecutor has just suspended the country’s intelligence chief and the government let it happen. That is what Brussels asked for, and Tirana is graded as if it hadn’t happened. It is also the moment to start checking the prosecutor.

By Albatros Rexhaj (Tirana)

On Tuesday morning a prosecutor in Tirana asked a court to put the head of the country’s intelligence service under house arrest, and the court said yes. The prime minister was in New York. His own appointee, chosen over the opposition’s objection three years ago, was suspended while he was out of the country. His party’s senior legal voice, Fatmir Xhafaj, went into committee and said the institutions were doing their job and that this is what a state of law looks like.

In which other capital of Europe could that sequence run from start to finish?

Start next door. In Belgrade the man who ran the security service for years is under American sanctions and sits in cabinet. No prosecutor has opened a file, because in Serbia the prosecutor is a department of the government and knows it. Cross into the Union. In Budapest, sixteen years of one prime minister, and no indictment has come within reach of his table; Brussels froze the money instead, which is what you do when there is no prosecutor to call. Those are the two clean cases, one candidate and one member. Between them lies most of the map: Skopje, Sarajevo, Podgorica, Bratislava, Sofia, Bucharest, Valletta, each with its own story of a prosecutor that never reached high, or reached high once and was then cut down to size by the people it had reached.

Put the Albanian ledger next to that. A former prime minister and current opposition leader indicted and confined to his home. A former president arrested at a roadside. The mayor of the capital detained in office. A former deputy prime minister charged and gone to Switzerland. The deputy prime minister who ran half the government’s infrastructure under investigation with a travel ban. And now the intelligence chief, the one office whose files could embarrass everyone who ever governed. Both parties are on the list. Neither chose the order.

And what did the government do in each case? Nothing. When Berisha was indicted, the majority did not rush a law through Parliament to narrow the offence. When Meta was taken from his car, no minister called the prosecutor. When Veliaj was detained, his party did not cut the Special Court’s budget in the next finance bill. When Balluku was placed under investigation, the prime minister who had built his second decade on her ministry did not move to change how SPAK’s head is chosen, and her file did not close. The tools are all there, in every capital: the budget line, the appointment procedure, the majority that can amend a statute in an afternoon, the friendly judge, the leak to a friendly newspaper, the smear of the prosecutor’s private life. Fico used the first. Orbán never needed any because he never allowed the office. Bucharest used all of them in sequence. Tirana has used none of them. Rama has said unkind things about SPAK on television, which is his right and his habit, and nothing he has said has been followed by a law, a budget or a decree.

There is only one honest reading of that. A government that wanted to protect itself would have protected itself; the instruments are cheap and the majority is comfortable. It did not, and not because it is composed of saints. It has decided, as state policy, that the road to Brussels runs through a prosecutor it cannot control, and it is willing to pay for that in arrests of its own people. That is what a sincere EU candidacy looks like from the inside: a prime minister in New York reading that his intelligence chief has been suspended, and saying nothing.

A hostile reader will now say the word Balluku. When SPAK asked Parliament to authorise measures against the deputy prime minister, the majority voted no; two years earlier it had voted yes on Berisha. Read what that vote is. Since the constitutional amendment of 2012, a member of Parliament can be investigated, indicted, tried and convicted without anyone’s permission. The one thing a prosecutor cannot do without Parliament’s consent is arrest, detain or search her before a verdict. The vote decides whether she waits for trial at liberty or in custody, and it decides nothing else. Balluku is still a suspect, her file is still open, she is still under a court order to appear and still barred from leaving the country. If SPAK indicts her, she stands trial. If a court convicts her, she goes to prison, and no vote can stop either. Compare Fico, who abolished the office that would have asked, or Belgrade, where no prosecutor asks. The constitution puts the custody decision for legislators in a political body; that is how it was written, and a majority that exercises a power the constitution gives it is doing what the constitution says. One can argue the design should change, and I would. But a vote under Article 73 is not a shield from prosecution, and anyone who presents it as one is either mistaken about the constitution or counting on the reader being so.

Those who cheered on Tuesday should also worry. Suspending the head of an intelligence service and searching her home is not the same act as detaining a mayor. A mayor’s office holds contracts. An intelligence chief’s home may hold, on a laptop or in a safe, things that are not hers and in some cases are not even Albania’s: the names of people who talk to the service, the methods by which it listens, and what partner services in Washington, Berlin, Rome and London have shared with Tirana on the understanding that it goes no further than the director’s desk. The warrant was signed by a judge of the Special Court and executed by officers of the National Bureau of Investigation. Both are creatures of the justice reform, and both sit outside the clearance system that governs who may see classified material. The law on classified information does not stop being law because a prosecutor is holding the document. Who at SPAK and BKH is cleared to read what was taken, and by whom? Who is running SHISH this afternoon, with its director suspended, abroad, and answering to no one in the building? Which allied service has already called to ask what Hyseni had access to, and whether what reached her ever reached Agasi? Tritan Shehu’s remark about credibility with NATO allies was made for domestic effect, and it is still true. An allied service does not wait for a verdict. It reads the news and reassesses the channel the same day.

The opposition wants the President to convene the National Security Council, and whatever the politics, on the narrow question it is right. There is a damage assessment to be made, and it belongs neither to the prosecutor, whose job is the case, nor to the prime minister, who cannot audit his own appointment. It belongs to the President, who decreed her, and to Parliament’s oversight committee, which sat through her annual report in June and asked no question that stuck. If the suspicion is right, the leak existed before Tuesday and the search ended the risk rather than creating it; that is also true, and it changes nothing about the assessment. A state that has to arrest its intelligence chief has a security problem that began well before the arrest and does not end with it.

I have sat in enough diplomats’ dinners to know how the conversation goes. Someone has heard that this prosecutor is close to that party. Someone else has it on good authority that the arrest of X was timed to help Y. A third has a cousin who knows the real files never get opened. None of it is written down or sourced, none of it would survive five minutes in front of a desk editor, and all of it travels from table to table until it reaches a cable and from the cable into a report. It is hearsay dressed as insight. The same people have watched, for three years, a prosecutor arrest a former president, a former prime minister, the capital’s mayor, a deputy prime minister and now the intelligence chief, and have found, each time, a reason to be unimpressed. When SPAK arrests an opposition figure, the whisper is that it serves the government. When it arrests a government figure, the government sacrificed him. When it arrests both, the whole country is rotten. There is no result SPAK could produce that the dinner table would score as a point for Albania.

The version that ends up in print is worse. Read any annual report on Albania from the last three years and you will find SPAK’s arrests cited twice: as evidence of progress in the chapter on judicial reform, and as evidence of the depth of corruption in the chapter on corruption. The same indictment counts for and against. A country where nothing is prosecuted shows a clean sheet and gets called stable. A country that prosecutes shows a list of names and gets called captured. It is the logic of a man who thinks the hospital with the most patients must be the unhealthiest town. Nobody applied it to Romania when DNA was at its height; that was called a success story. Nobody applies it to Italy after Mani Pulite. It is applied to Albania because Albania is small, poor, at the back of the queue, and cannot answer back in a language the reviewers read.

It is also unethical, in the precise sense that it punishes the behaviour it claims to want. Every accession framework asks for a track record of investigations and convictions at the highest level. Albania has produced one longer than any other candidate’s, and longer than several members would tolerate at home. If the reward is to be described as more corrupt than the countries that produced nothing, the framework is teaching every capital in the region the lesson Belgrade learned long ago: do not prosecute, and you will not be embarrassed.

Albania is not clean. A prosecutor who has to arrest the head of the intelligence service is describing a state in which the intelligence service needed arresting. Hyseni is guilty of nothing yet; she has one court and a presumption of innocence in front of her. The test of an anti-corruption prosecutor is not whether it convicts small people; every prosecutor does. The test is what happens when its next target is the person who can end its budget, its mandate or its director. Each time that test has been set in Tirana, the office has survived it, and never at the cost of a law.

There is a second narrative waiting to be installed, and it is as bad for the country as the first: SPAK above question, its indictments verdicts, anyone who asks how a warrant was obtained an enemy of reform. That narrative suits the prosecutor, suits the embassies that midwifed the office, and suits a public that has waited thirty years for someone in a suit to be handcuffed. It is also poison. A prosecutor who cannot be wrong stops checking whether he is. Every institution told it is holy has ended up behaving as if it were, and the justice reform did not repeal that law of nature; it moved the risk from the politicians to the prosecutors. Three men now sit in cells or living rooms on security measures, not convictions. Hyseni has been charged with nothing; she is suspected, and suspicion is the lowest rung of the ladder. The burden of proof has not moved. It is SPAK’s job to prove guilt in a courtroom, before a judge, against a lawyer allowed to make its life difficult. It is not the defendant’s job to prove innocence, and not the public’s job to treat a leak about “materials seized” as a judgment of the Supreme Court.

Cutting the budget is interference. Rewriting the appointment rules is interference. A minister on the phone is interference. A lawyer challenging a search warrant is not. A journalist asking why a security measure was chosen over a summons is not. A parliament adopting recommendations on pre-trial detention is not, provided it does not change the law mid-case. A Constitutional Court judge asking who authorised his surveillance is not. An editorial that says a prosecutor’s theory looks thin is not. All of that is the process working, and a prosecution office that cannot survive it should not be trusted with the power it has. The government’s restraint is worth praising precisely because it leaves this space open. The worst outcome of Tuesday would be a country in which the executive does not touch SPAK and nobody else dares to either. That is not a state of law. That is a different master.

That space is not only for Albanians. The European Union and the United States did not observe the justice reform from a distance; they wrote parts of it, financed it, vetted its staff and sent monitors to sit in the vetting rooms. Albania signed for it, in the Stabilisation and Association Agreement, in the negotiating framework, in every benchmark since. A contract binds both sides. The same partners who read every line of a government decree, count the days a minister took to answer a parliamentary question and footnote the prime minister’s television remarks have never written a paragraph of comparable rigour about SPAK. How long does it hold people before trial, against what standard? How many of its security measures survive appeal? What is its ratio of indictments to convictions, and what becomes of the people it charged and could not convict? Who authorises surveillance of a judge, and who reviews it afterwards? How does it handle classified material seized from an intelligence officer’s home? These are the questions asked of every other institution in the country and of any prosecution office in a member state. Asking them of SPAK is not a favour to the government or a concession to the accused. It is what a partner who helped build the thing owes to the people who live under it. An office scrutinised only by its targets and praised only by its sponsors has no honest measure of itself. The people best placed to lay the questions out in the open are the ones who keep saying the reform is theirs.

Fico answered the test by abolishing the office. Orbán answered it by never letting it exist. Rama, so far, has answered it by leaving the appointee to the court and saying nothing from New York. That silence deserves to be read for what it is. SPAK was created by foreign pressure and constitutional amendment; it survives on the willingness of a government to be embarrassed by it, and Tuesday was the largest embarrassment yet. The arrest of an intelligence chief tests both halves of a state at once: the state that let her get to that desk, and the prosecutor that reached her there. Albania should be judged on both, and so should the prosecutor. The reaction in Brussels should not be the usual paragraph of concern about the Western Balkans. It should be an uncomfortable look at the members, a fairer sentence about the candidate, and a harder look at the prosecutor they built.

The candidate at the back of the queue has just done something several at the front have been avoiding for a decade. It would be decent to say so, and wise to check the work.