Editorial: Telefonyi Zakon and Thoma Gellci, ‘the felon’
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By ALBERT RAKIPI
The outdated Russian term Telefonyi Zakon or the so-called Rule of Telephone law, refers to “a practice by which outcomes of legal cases allegedly come from orders issued over the phone by those with political power”. The practice itself remains a classic example for a justice system that lacks Rule of Law.
A phone call from Vishinski, Stalin's prosecutor, was enough of a cause to start humiliating people, accuse and put them in jail, prosecute and even give them death penalty. Not only would that single phone call from “up there” initiate a witch-hunt process against individuals who dared to get out of row, but also it brought all parts of the Bolshevik justice system - prosecutors, judges, secret police, secretaries, and prison guards, including even their own families- into a full alignment with the order initiated from that phone call. Soon after, the name of that individual, any work done, any medals won in war or peace, had no longer value. A phone call from “up there” was, basically, how “it worked”. Even the press and media would then help with enthusiasm in creating the social context needed so the alignment would become a national event. A phone call from “up there” vs. Rule of Law.
Instead of Rule of Law - which presupposes the application of the laws and procedures and presumes innocence until one is found guilty based on facts, documents, and evidence and by which all persons are equal before the law regardless of wealth, social status, or the political power wielded by them, Telefonyi Zakon in the justice system, means a flagrant violation of human rights and freedoms: detention, arrest, investigation and even punishment, including extreme punishments, only through an order given by phone.
In a justice system that operates according to Telefonyi Zakon, a citizen can get arrested, investigated and sentenced to several years in prison, life imprisonment, or death penalty, and a file is prepared accordingly only after.
In a justice system that takes orders by phone, the victims are not even aware of the crime they assumably committed, but often in their files one can find a "voluntary" confession of these victims themselves for imaginary crimes which they have not even thought about in their lives. Torture was obviously another “working instrument” of those regimes.
Justice by Rule of Telephone is older than Soviet Russia. However, the Rule of Telephone in Bolshevik Russia became an institution which maintained the regime itself rather than law and order. The ill-designed practice got widely spread in other countries led by the same Bolshevik philosophy.
In 1958, for example, a special court in Prague sentenced to death a senior member of the Czechoslovak Communist Party on charges of conspiracy against her own party and the state. 50 years later, the Court of Prague ordered the decalcification of her file. There was no evidence to prove her hostile activity.
Communist Albania has been a living proof of a justice system that functioned by Telefonyi Zakon. Those who have not read the trilogy of Father Zef Pëllumbi, a tragic testimony of the Rule of Telephone, may have seen or heard Fiqerete Shehu's "voluntary" confession "about her own hostile activity" and that of her husband, Prime Minister Mehmet Shehu. (Who has seen Mrs. Shehu's mutilation would not take much fantasy to understand the types of torture the regime in question had experimented on her body and mind.)
The fall of the Bolshevik regime that Enver Hoxha along with Memhet Shehiu, Fiqerete Shehu and others in that circle built in Albania did not lead to the end of the telephone law immediately, nor definitely.
Despite the fact that modern Albania has left behind the criminal legacy of Hoxha, Shehu and their collaborators, the replacement of telephone law with the Rule of Law is still an ongoing battle. The very idea and objectives of a justice reform strongly supported by international and local actors, aims at the full establishment of the Rule of Law in the justice system in modern Albania.
But what has telephone law got to do with the case of Thoma Gellci, the former General Director of Public Albanian Radio Television (RTSh), arrested two months ago? Gellci has been in prison under the abuse of power charge after the judge approved and then enforced the prosecutor’s request to detain Gellci in jail during the investigation.
Interestingly, prior to his arrest, the Board of RTSh abruptly terminated his term as general director. It is true that his contract with RTSh ended on May 6, 2021. However, the termination of his term by a document that assumes his stay any later in the office as “illegal”, remains questionable. First, there is no clear argument on why the board of RTSh didn’t open the process for a new general director on time. Second, Gellci was dismissed from his office without following a legal procedure. Based on the RTSh law, a fair process is required when releasing the general director from his office. In any case he should have been notified to appear in a board meeting two weeks in advance and the decision would take place only after voted in a secret ballot by the Board members. In Gellci’s case, none of these happened.
It seems that Gellci had plans to run for a second term. Even though he handed over his duties to his deputy as required by the board, he sued the board for termination of office considering it illegal.
It seems that Gellci’s arrest was a surprise to many people who knew him but also to him himself. Dismissed from his position, Gellci, who holds dual Albanian and American citizenship, traveled to the United States. Three weeks after returning to Albania, in an heavy operation worthy of a criminal who is both dangerous and sophisticated, the police went and arrested him in his parental home in a village 20 minutes away from the border with Greece.
Interestingly enough, even though the police called and told them that they were looking for him, Gellci shared his location with them and waited at home for them to arrive. He didn’t run away.
If considering the fact that in two instances, a judge ruled in favor of Gellci’s imprisonment, reinforces the idea that we are dealing with a "criminal" who, if not in prison can 1) spoil evidence or influence others who are accused of favoritism in procurements, 2) escape the country and 3) commit acts or social destructions (three good reasons for keeping someone in jail during a related investigation process).
It remains unclear how Gellci could spoil evidence when he is no longer in office (for more than six months by now); it sounds ridiculous to put one in jail to keep him away from influencing other people who are under investigation and leave him in the same cell with them for two full weeks; or why would one assume that Gellci will escape the country when he was abroad and came back in; or he was in his own home which is only 20 minutes away from the border, but he waited for and voluntarily conceded himself to the police. And finally, what acts of social destruction the man in charge of plus 1,000 people, of a national radio-television, of all national antennas for five years is expected to suddenly commit? What has Thoma Gellci, “the felon” vs. “the fellow” done to deserve imprisonment while waiting for trial?
We truly do not know what Thoma Gellci, the so-accused felon has done.
What we know for sure is what Thoma Gellci, the general director of RTSh (the fellow!) has done.
Even the most uninformed, cynical, and envious admit that during the last five years RTSh has changed in substance. Gellci and his staff have visioned and contributed to its modernization. And this is not about digitalization and technological change even though these are great achievements on their own. The Albanian public broadcaster has slowly but securely slipped outside any political influences. From a propaganda instrument of the ruling political party in power, for the first time since its first day, RTSh under Gellci’s led took important steps for an admirable professional independence which was also recognized by the reports of international institutions.
For the first time since pluralism was established, RTSh started offering special programs related to art, music, film and education to Albanians all over the world. For the first time, Albanian sport fans had the opportunity to attend the World or European football championships regardless if they resided in Albania or abroad.
Until five years ago, the Albanian citizens were forced to receive these services from private television stations for a fee.
It is very likely that with these ventures, director Gellci gained the wrath of private televisions, which are known to have systematically used the rich archives of RTSH free of charge in the past yet not under Gellci’s time.
In addition, an investigative TV show to uncover the connections of strong people with politics may have inspired great outrage against Gellci as well.
But whatever good things general director Gëllci has accomplished, he was not given even the immunity of a felon.
Because Gellci’s case was announced as a case of SPAK, one of the new institutions of the Albanian justice system founded by the new reform, it makes one think that something serious must have happened. Gellci must have been involved in a high criminal activity perhaps? We do not know this and we are unable to understand it until the trial takes place. We simply know that SPAK is the structure that investigates corruption and organized crime.
It seems, however, we are not alone in not knowing and not understanding what Thoma Gellci “the felon” has done.
SPAK seems unclear either.
Interestingly, when the prosecution publicly announced in its statement of October 8, 2021 the arrest of Gellci the crime sounded very clear. Referring to that statement, the prosecution did not express that there were "reasonable doubts" that Thoma Gellci had violated the law. The notification of the prosecution resembled, as a matter of fact, a court decision. In that statement it was explicitly stated, "Citizen Thoma Gellci has committed legal violations that qualify in the elements of the criminal offense ‘abuse of office’ provided by Article 248 of the Criminal Code".
SPAK Prosecution reached this conclusion after an investigation that started on February 28, 2020; so almost two years before the decision for his arrest was made.
Surely, there should be no reason to question SPAK’s conclusion, a conclusion reached after two years of investigation.
But almost a month after this public statement, SPAK addressed RTSh with a request to be informed and make available documents for AGRO TV channel asking for details such as: when it started working, if there were any special staff employed, what were the devices used for the programs of this TV channel and things of that nature.
Meanwhile, the accusation of abuse of office for Gellci is related to the AGRO TV channel and the related technology purchased under his time in office.
Even though Gellci was publicly accused of abuse of office on October 7, 2021 (after an investigation initiated on February 28, 2020), on its statement of October 30, 2021, the prosecution’s office claimed that “it is in the process of conducting investigations”. So the prosecutor's office is still investigating a case for which they appeared very confident just a few weeks ago when they arrested Gellci under the strong accusation of abuse of office?
Does this mean that after arresting and accusing him of legal violations, the justice authorities are still gathering evidence of guilt for Gellci?
If so, this is an obvious case of Telefonyi Zakon that we treated at the beginning, a disease from which the Albanian justice seems far from any recovery.
It is clear that the new justice system, including prosecution and the structure against corruption and organized crime are under strong pressure.
But their success, credibility, service legitimacy and usefulness are achieved only through the application of rule of law in the justice system. Not every accusation made by the prosecution should be grounded by the court. If not, our justice system is moving backward to the darkest time when prosecution, investigation, and court of Albania, all of the three were a single body operating under the Telefonyi Zakon .
Whoever thinks of this argument as an attempt to protect Gellci, should remind himself of something bigger: if this doesn’t stop, anyone can find themselves in a similar situation.
A system that works under Telefonyi Zakon – Rule by Telephone -- is blind; in such a system no one has immunity.
The story of Shehu, the communist Prime Minister of Albania, a senior exponent of a justice system that functioned under Telefonyi Zakon remains adequate. He, who without trials and without evidence, had ordered the imprisonment and killing of civilians and even, as Father Zef Pëllumbi testifies, of children, was unable to stop the Telefonyi Zakon system turning fiercely against him with unsubstantiated allegations. Under a strong pressure from the system to which he devoted his life, Shehu committed suicide. According to independent experts, he deserved a trial, even though it would have to be a trial for crimes against peace and humanity.
