Background
Gentjan Osmani served as a prosecutor in Albania from 2003, most recently at the Tirana Court of First Instance for Serious Crimes. As part of Albania’s sweeping transitional vetting reform of its justice system, he was evaluated by the Independent Qualification Commission (IQC) and, on appeal, by the Special Appeal Chamber (SAC). His asset declarations covered a modestly sized family flat purchased in 2017 largely from the proceeds of an earlier flat sold in 2016, two cars, and moderate savings. He passed evaluation on both integrity and professional competence; only his asset assessment was at issue.
The IQC confirmed Osmani in office in August 2018. However, following an appeal by the Public Commissioner, the SAC reversed that decision in July 2019 and dismissed him. The SAC found a financial shortfall of approximately ALL 1,760,497 across two years — 2011 and 2013 — arising from its treatment of declared cash savings as unspent, because Osmani had not formally noted in his annual declarations that those savings had been used to repay instalments on a EUR 20,000 family loan. The SAC rejected his explanation that his omission reflected an honest misunderstanding of the declaration format rather than concealment.
The case gained further complexity because Osmani’s wife, a judge who shared the same household finances and faced the identical shortfall calculation, was confirmed in office by both the IQC and ultimately the SAC. No convincing justification was offered for treating the couple’s materially identical financial circumstances differently, and the Public Commissioner ultimately withdrew his opposition to her confirmation.
The Court’s Holding
The ECtHR held unanimously that Albania violated Article 8 of the Convention (right to respect for private life). The Court accepted that Osmani’s dismissal interfered with his private life — a loss of career and income with serious consequences for his and his family’s well-being — and that the interference was lawful and pursued legitimate aims (national security, public safety, and protecting the rights of others) consistent with the Court’s prior ruling in Xhoxhaj v. Albania. The dispositive question was proportionality.
The Court found the dismissal disproportionate. The sole basis for dismissal was a formalistic reading of the annual asset declarations: the SAC inferred that declared cash savings remained unspent merely because Osmani had not formally indicated their use, without citing independent evidence that the savings had not in fact been applied to loan repayments. All assets were declared and all sources were lawful; the shortfall reflected a paperwork formality, not hidden wealth or bad faith. The Court noted that the 2009 declaration did not disclose clear bad faith, and that the applicant’s explanatory account was plausible.
Critically, the Court found it equally significant that the identical household financial situation produced opposite outcomes in the vetting of Osmani’s wife, who was confirmed in office. The absence of any convincing explanation for that disparity — given the severe and divergent career consequences — further undermined the proportionality of Osmani’s dismissal. The Court awarded EUR 6,000 in non-pecuniary damages and EUR 5,000 in costs, and indicated that reopening of vetting proceedings would be the appropriate remedy should Osmani so request.
Key Takeaways
- Vetting dismissals based solely on formalistic gaps in asset declarations — without independent evidence of hidden assets or bad faith — can violate Article 8’s proportionality requirement.
- Where spouses share the same household finances and face the same calculated shortfall, a vetting body’s decision to dismiss one while confirming the other demands a compelling and reasoned justification; absent that, the disparity weighs against proportionality.
- The Court reaffirmed that Albania’s justice-system vetting reform answers a pressing social need, but that individual dismissal decisions must still satisfy proportionality on their specific facts.
- The appropriate remedy for a disproportionate vetting dismissal is reopening of proceedings rather than automatic reinstatement, particularly as the IQC has concluded its mandate and the SAC is winding down.
Why It Matters
This judgment adds to the ECtHR’s growing body of case law scrutinising the individual application of Albania’s transitional judicial vetting process, following Xhoxhaj and Sevdari. It signals that while the vetting framework itself is Convention-compliant, its implementation must be evidence-based and genuinely proportionate — formalistic inferences from incomplete paperwork, unaccompanied by proof of actual unjustified enrichment, will not suffice to justify the career-ending measure of dismissal.
More broadly, the decision has relevance for other Council of Europe member states undertaking integrity-vetting reforms of their judiciaries or prosecutorial services. It reinforces that even where a state pursues legitimate rule-of-law goals through extraordinary vetting, Article 8 requires individual decisions to be grounded in substance rather than form, and that inconsistent treatment of persons in materially identical circumstances must be adequately explained.