The conceptual challenge of the duo Millona-Gjoka is not just for satire

By Genc Pollo

"On the part of the citizen under investigation, Sali Berisha, in his capacity as Prime Minister of the Republic of Albania, concrete and active actions were carried out, through the approval of legal and by-law acts, in order to realize the interests of the five former owner families, where the direct beneficiary turned out to be his daughter's husband, citizen Jamarbër Malltezi"

This is the passage where special prosecutors line up all the evidence of the accusation against Mr. Berisha (excluding an administrative control of a directorate in the prime minister's office) declaring him a person under investigation and a suspect but not a defendant (accused) for "passive corruption in collaboration".

This indictment has sparked debate and objections from the violation of the specific constitutional freedoms of the deputy, to the ambiguity about the criminal offense that has been established and to the mystery why J. Malltezi is considered a state functionary without being such a day.

But the most special thing in this text is a precedent that the Special Prosecutor's Office has set with the evidence for the guilt of Mr. Berisha as quoted above.

The legal and bylaw acts in question are:

1- a law on the return of properties of v2006 which expands the rights of former owners on the grounds of tourist areas, properties of ministries (including that of Defense), research institutes and large strategic investments. The law of almost 30 articles also changes some criteria, price procedures, etc.

2 - a VKM of v2008 for the assessment of state property and for its sale procedure where, among other things, it was foreseen that the former owners could use privatization bonds of the 90s in the pre-purchase of the property.

These two official acts are of general normative nature. I mean their effect and obligation extends to all involved and interested entities. These parties are, in addition to state bodies and public institutions, also tens of thousands of former owners who claim the property, new land owners with the legal and financial service providers agreed by them.

It is the first time in Albanian criminal history, and as far as I have consulted in the world, that legislative acts with a general normative nature are considered as evidence of a crime due to the effect they may have had on a particular subject among many eyes. Maybe this is not the first time that some actions of prosecutors challenge the basic logic, but this time the challenge overcomes the concrete case and confronts the legal tradition of the continent and beyond.

More specifically, let's see the contrast with the individual official acts debated in recent years. KM Rama has personally signed the status of strategic investor for ministerial families as well as for bandits with Sky CC. He has also signed the VKM as the one that forgives the Navy base to private individuals (which was overturned by the court because "it harms national security). Rama has also signed dozens of acts for the concessions of incinerators and sterilization, which have been proven by the judiciary as unlimited looting of the taxpayer. These and others are under criminal investigation and we do not know if they will serve as evidence against him for the criminal offense of abuse of office. Depending on the definition of the motive as altruistic or selfish (he wanted to enrich others or he thought about himself) they can also prove "passive corruption". But in all cases these are unique acts with individual obligations and favors for a company or person. And in the Albanian world experience, individual official acts can exclusively be the product of abuse and corruption.

At a more theoretical level, general normative acts express a program, vision and political will. Individual official acts can be seen as implementing instruments of the former.

In the media, I have seen examples that illustrate the logical challenge of special prosecutors such as p. sh. a prime minister who increases salaries and pensions or liberalizes visas can be accused of favoring (also) his relatives. I like the inverted example better: Prime Minister Filan Fisteku is in a personal and political conflict with Mr. HQ. The Prime Minister decides to raise taxes. Mr. HQ, whose company's dividend is reduced as a result, complains about political and personal persecution, criminally accuses the prime minister of "abuse of duty" and finally asks the court not to pay the additional taxes.

The satire of this precedent can go on endlessly, but we do not have the luxury of reducing the judiciary to an object of humor, nor do we automatically attribute individual mistakes to the system.

Let's imagine in the worst nightmare that the above "evidence" is confirmed by the Albanian judiciary. Beyond the specific case, a consequence will be that a government can hardly sign public policies and generic laws because among the tens or hundreds of thousands of beneficiaries there may be his family members. And with that, a special prosecutor can charge them criminally.

We should also note that the Special Court often seems unable to play the corrective and guiding role towards SPAK and is in a hurry to seal the complaints that are presented to it.

Even worse, under the guise of the "unprecedented reform" and the government-international claims for the "young heroes", we are returning to the purely party-political arrests and indictments that we left behind in the 90s.