BERISHA VS. SOLLAKU: A HIGH LEVEL SMACKDOWN

C O N F I D E N T I A L TIRANA 000436

SIPDIS

SIPDIS

DEPT FOR EUR/SCE (BENEDICT, SAINZ)
NSC FOR BRAUN

E.O. 12958: DECL: 05/02/2016
TAGS: PGOV AL
SUBJECT: BERISHA VS. SOLLAKU: A HIGH LEVEL SMACKDOWN

Classified By: Ambassador Marcie B. Ries for reasons 1.4 (b) and (d).


1. (C) SUMMARY: Over the last eight months, PM Berisha and
his allies have engaged in a campaign to dump General
Prosecutor Sollaku, claiming he is a major obstacle to
progress in the fight against crime and corruption. Berisha
has publicly accused Sollaku of everything from laziness to
ties with organized crime in an effort to discredit his
one-time legal advisor and force him out of office. Sollaku,
whose energy and record of accomplishment as the Government's
chief Prosecutor might be questionable, has been able to hold
his position because by law he can only be replaced by the
President, and Moisiu is reluctant to allow Berisha to run
roughshod over his prerogatives. This eight-month battle
came to a head May 2 as the DP began arguments to have
Parliament embark on a formal investigation of Sollaku's
conduct -- an investigation which DP parliamentarians hope
will end in either his dismissal or resignation. While
Sollaku clearly has not been energetic enough in the fight
against crime and corruption, Berisha's public and thus-far
unsubstantiated charges of corruption are clearly
inconsistent with an emphasis on rule of law. It is likely
that the DP majority will decide to fire Sollaku even though
the Constitution sets the bar for proof of misconduct very
high. Meanwhile, much energy will be wasted and much of the
good work the DP has done on its domestic program
overshadowed by this unseemly dispute. This may also end in a
difficult Constitutional confrontation between a Parliament
demanding the GP's removal and President who insists on
defending him. End Summary.

A PLANNED ATTACK


2. (C) Since coming to power in September 2005, the DP-led
government has waged a public and increasingly harsh campaign
to remove General Prosecutor Sollaku from his post. Under
Albanian law, however, the President is the only person who
can actually order the dismissal of the General Prosecutor
(GP) and, thus far, President Moisiu has given no indication
that he intends to dismiss Sollaku. PM Berisha has
spearheaded the anti-Sollaku drive, initially instructing
Speaker Topalli to simply demand in a private meeting that
Sollaku resign on the grounds that he simply has not pursued
his job with sufficient energy and seemed unable or unwilling
to "play ball" with the government's vigorous anti-corruption
program. Stymied by Sollaku with Moisiu behind him, Berisha
recently decided to play hardball by stating in an emotional
television appearance that Sollaku has ties to criminal
elements.


3. (C) In Parliament, initial indications are that the DP
intends to revisit GP action/inaction in over 80 particular
cases. The DP noted six specific categories of inquiry:

-- failure to resolve "serious and shocking" criminal cases;
-- serving as an instrument of political blackmail against
MPs;
-- failure to prosecute charges on organized trafficking
issues;
-- abuse of office;
-- issuing illegal orders; and
-- applying a double standard in cases involving relatives of
people in power.

BERISHA AND SOLLAKU HAVE A HISTORY


4. (C) At first glance, Berisha and the DP's targeting of
Sollaku would seem apolitical -- Sollaku was Berisha's legal
advisor from 1992-1996 and no one claims that he is
affiliated with the opposition-leading Socialist Party (SP).
Appointed by President Meidani in 2002, Sollaku's designation
was initially welcomed by Berisha. (Note: There is no time
limit for a GP's term in office). As overall perceptions of
crime and corruption worsened considerably over the next
three years, Berisha made the fight against corruption the
centerpiece of his party's campaign to return to power in

2005. As the country's chief law enforcement officer during
a time of relatively few prosecutions of serious corruption
or organized crime, Sollaku was painted by Berisha as "part
of the problem." Sollaku himself has vigorously denied the
so far unsubstantiated allegations against him and has taken
particular umbrage at recent attempts to question the actions
of his wife, a judge on Tirana's Court of Appeals.

ANXIETY OVER DP TACTICS


5. (C) The DP's campaign against Sollaku has provoked
considerable consternation and much hand-wringing among
opposition parties and some, but not all, constitutional
scholars. The opposition has framed the debate as one of a
struggle against Berisha's authoritarian tendencies, and
claim that Berisha intends to subjugate the independence of
the GP's office to his will. The opposition and others also
claim that the DP's tactics and ultimate goal are
unconstitutional.

CONSTITUTIONAL ISSUES AND DUE PROCESS


6. (C) Under Albanian law, the President may dismiss the GP
upon the proposal of Parliament. The Constitution also
provides that Parliament may instigate investigations for
dismissal of the GP for the following reasons: "serious
violations of the law during the exercise of his duties, for
mental or physical incapacity, and for acts and behavior that
seriously discredit the position and reputation of the
Prosecutor."


7. (C) The legal debate centers on whether this particular
investigation ruNs afoul of the constitutional provision that
prohibits Parliament from bringing criminal charges or
exercising the attributes of courts. Some claim that
Sollaku's due procecs rights have already been violated due
to the publicity the DP has brought to allegations against
him and because Sollaku has been given only a brief amount of
time to formally respond to Parliament. Sollaku supporters
also say that the Constitution implicitly forbids Parliament
from requiringSollaku to give an account of specific cases
or decisions. This point is apparently based on article 53
of the Constitution which says that the GP cannot inform
Parliament on specific cases, but only on the state of
criminality in general.


8. (C) A somewhat similarin 2002 when
Parliament,n a formal investigation, to dismiss then General P`ts and behavior
that seri`sition and reputation of tcase,
President Meidani dismissed Rakipi.
RakipQ QQ the Constitutional Court, Q@pocess rights had been vioQ Q Q@QQ@d
been given an opportunit1 Q Q Q Q Q`QQ@@QAAnt's accusations. The co5Q Q`Q``Q `QAaQA@@Qr,
h/lding that due process rights applied to disciplinary
proceedings as well as court proceedings. Nonetheless,
Parliament subsequently ignored the ruling and Rakipi was
replaced by Sollaku.

HOW IS HE DOING?


9. (C) To date, no one has come forward with any specific
evidence demonstrating that Sollaku has ties to crime. When
asked, Parliament Speaker Topalli told the Ambassador that
she had no evidence herself Sollaku was dirty, but was
absolutely convinced that the investigation would reveal
something. OSCE's Head of Mission Vacek told us he was
"unsatisfied" with Sollaku's explanations to him about
prosecutions in Vlore involving organized criminal activity.
Our OPDAT specialist, who has worked closely with Sollaku
over the past two and a half years, said that he is unaware
of anything suggesting criminal ties. Nevertheless, he has
also been frustrated, at times, with Sollaku's apparent lack
of aggressiveness in pursuing some cases, the most notable of
which being charges of bribery against former Ambassador
Tarifa. (Note: OPDAT's specialist said that Sollaku had a
videotape of Tarifa discussing a bribe, but would not pursue
the case without "more documents.")

COMMENT: DIRTY POLITICS BUT PROBABLY CONSTITUTIONAL...SO FAR


10. (C) Politics here is a hard-edged game and the public
campaign against Sollaku, however unseemly, should come as no
surprise. The real issue is whether Berisha and company
will, deliberately or inadvertently, cross the line and
interfere with an independent institution in an
unconstitutional manner. On this score, we believe that
Parliament's investigation is an appropriate legal path for
the GoA to follow, but the degree of publicity surrounding it
and the fairness accorded to Sollaku to respond may present
due process issues.


11. (C) Whatever the outcome of the investigation -- almost
certain to be a muddled affair at best -- Sollaku's ultimate
fate may already be predetermined. Even if Moisiu refuses to
dismiss him, Sollaku's ability to do his job effectively may
already be too compromised given the ugliness of the dispute.
Lurking in the background are also increasing doubts from
more objective viewers about Sollaku's competence. His
supporters are notably silent on how good a job he has done
and Sollaku's attempts to rally the international community
to his side have been both clumsy and ineffective. In the
end, his legacy may be one of a staunch defender of the
independence of the GP's office, but as a mediocre fighter
against crime and corruption.


12. (C) If Sollaku is dismissed, he would be the second GP
in a row to suffer such a fate. The opposition will claim,
and perhaps rightly, that Sollaku's dismissal would cause
irreparable injury to the independence of the GP's office.
There will also be speculation that Berisha's thirst for full
control of the apparatus of crime enforcement will only be
fueled more by a "victory" against Sollaku and that other
independent institutions would be at greater risk of
political interference. The validity of the later charge
will likely depend on the strength of the DP's case against
Sollaku, the manner in which the President acts, and the
degree to which Sollaku's successor is viewed as a strong,
independent (read: consensual) personality or simply as a DP
puppet.
RIES