1 REPUBLIC OF ALBANIA THE PRESIDENT No. 315. Prot. Tirana, on 21.01.2020 Subject: Request for an opinion on the process of election of Constitutional Court members in the Republic of Albania, providing a comprehensive evidence on the activities of the President of the Republic, Parliament and the Justice Appointment Council. To: Mr. Gianni BUQUICCHIO PRESIDENT OF VENICE COMMISSION STRASBOURG, FRANCE In Attention to: RAPPORTEURS OF VENICE COMMISSION Honorable Mr. Buquicchio, Thank You for your personal commitment and the support of Venice Commission to strengthening democracy and rule of law in Albania, for almost three decades. I fully agree with your wise conclusions during 11 October 2019 Plenary Session, emphasizing that the precious and generous assistance of the Venice Commission can neither cure nor replace the lack of willingness and culture of cooperation among Albanian institutions. Since the last Opinion of the Venice Commission invested by the Albanian Parliament, regrettably there was no reflection as follow-up to your advice and recommendations. Moreover, a non-functioning Constitutional Court for more than two years, a non-functioning Supreme Court, a sui generis crisis of representation - with Government, Parliament, all Municipalities and Municipal Councils in the hands of a single political force, including almost all independent bodies, has effected in total disequilibrium of the check and balance mechanisms and to the brink of total state capture.
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1
REPUBLIC OF ALBANIA
THE PRESIDENT
No. 315. Prot. Tirana, on 21.01.2020
Subject: Request for an opinion on the process of election of Constitutional Court members
in the Republic of Albania, providing a comprehensive evidence on the activities of
the President of the Republic, Parliament and the Justice Appointment Council.
To: Mr. Gianni BUQUICCHIO
PRESIDENT OF VENICE COMMISSION
STRASBOURG, FRANCE
In Attention to: RAPPORTEURS OF VENICE COMMISSION
Honorable Mr. Buquicchio,
Thank You for your personal commitment and the support of Venice Commission to strengthening
democracy and rule of law in Albania, for almost three decades.
I fully agree with your wise conclusions during 11 October 2019 Plenary Session, emphasizing that
the precious and generous assistance of the Venice Commission can neither cure nor replace the lack
of willingness and culture of cooperation among Albanian institutions.
Since the last Opinion of the Venice Commission invested by the Albanian Parliament, regrettably
there was no reflection as follow-up to your advice and recommendations.
Moreover, a non-functioning Constitutional Court for more than two years, a non-functioning
Supreme Court, a sui generis crisis of representation - with Government, Parliament, all
Municipalities and Municipal Councils in the hands of a single political force, including almost all
independent bodies, has effected in total disequilibrium of the check and balance mechanisms and to
the brink of total state capture.
2
This context along with the unilateral and unconstitutional implementation of judicial reform, in
flagrant violation of early Venice Commission recommendations, is patently drowning the country
into unconstitutionality, illegality and towards autocracy.
Had Venice Commission recommendations, key to reaching unanimous consensus on 2016
Constitutional amendments, been properly implemented, the country would have not faced such sui
generis crisis.
It is regrettable that the main institution responsible for the distorted implementation of justice reform
is Parliament, now running under one party only.
Such compelling unilateral and non-cooperative approach continued also during the process of re-
establishing the Constitutional Court, in an attempt to hijack the constitutional powers of the President
of the Republic and consequently capture the highest Institution of Justice.
In July 2019, the Albanian Parliament requested an opinion from the Venice Commission, on the
powers of the President of the Republic regarding election date, in the framework of the Parliamentary
Investigation Commission set for the impeachment of the President of the Republic.
On 14 October 2019, the Venice Commission submitted its Opinion No 959/2019, noting in essence,
that the activity of the President does not fall within the scope of violations that may authorize an
impeachment of the President. Despite this recommendation, the Albanian Parliament
postponed twice the Investigation Commission deadline, seeking to continue its systematic pressure
against the President to nominate in the Constitutional Court the candidates who enjoyed political
support of the majority.
Parliament further expanded the scope of Parliamentary Investigation Commission and rebutted the
decision of the President of the Republic for his nomination of Constitutional Judges, vesting upon
themselves constitutional supremacy in the process of establishing the Constitutional Court.
Only two months after the Venice Commission Opinion, Parliament addresses again the Commission
on 30 December 2019, for another opinion. The obvious purpose of Parliament is to make another
effort to veiling their decision to impeach the President of the Republic with the logo of the Venice
Commission, and to ensure political capture also of the Constitutional Court.
The lack of willingness by the Albanian Parliament to cooperate with the President of the Republic
is evident and well documented also in this process. The Institution of the President of the Republic
learnt of Parliament’s request to the Venice Commission only through the media1.
1 The request of the Parliament to the Venice Commission is not published in the web page of the Parliament
until now.
3
While examining the content of this Request, it can be deduced that Parliament’s account of facts and
circumstances is inaccurate with a subjective and superficial approach. Parliament’s substantially
twisted context and self-suggesting questions lead to a fake reading of the situation.
All this is done in bad faith, and to dishonestly push the Venice Commission towards cloudy
conclusions, to then be politically misused by the socialist majority.
The President of the Republic considers that the good faith of the Venice Commission, invested for
nearly 30 years to the benefit of the rule of law in Albania, cannot and should not be abused for
political goals of the day, but to benefit from the best experience of European Judicial practice.
In view of a serious unprecedented crisis, and while thousands of Albanian citizens are abandoning
the country due to violations of their fundamental freedoms and non-functioning of the rule of law, I
would like to bring to your kind attention that this Opinion of the Venice Commission will have a
direct impact on the course Albania is about to take, towards democracy or installation of dictatorship!
Honorable Mr. Buquicchio,
Aiming at an inclusive advisory process, the President of the Republic is presenting to the Venice
Commission a list of questions requiring an opinion regarding the constitutionality of actions of each
body involved in the process of reestablishing the Constitutional Court.
The questions are part of a comprehensive document with a true account of the process, based on
official facts that prove the full dimension of unconstitutional actions followed by the Albanian
Parliament, by the Chair of the Justice Appointment Council and other complicit institutions.
Assuring you of my highest consideration,
Sincerely,
Ilir Meta
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REPUBLIC OF ALBANIA
THE PRESIDENT
A. INFORMATION, OFFICIAL FACTS AND PROVES ON THE ACTIVITY OF THE
PRESIDENT OF THE REPUBLIC, THE ALBANIAN PARLIAMENT AND THE
JUSTICE APPOINTMENT COUNCIL ON THE PROCESS OF ELECTION OF
CONSTITUTIONAL COURT MEMBERS
AND
THE QUESTIONS OF THE PRESIDENT OF THE REPUBLIC FOR AN OPINION OF
THE VENICE COMMISSION OF THE ELECTION OF THE CONSTITUTIONAL
COURT2
I. Legal basis for the selection of the members of the Constitutional Court
The appointment of the Constitutional Court members, the procedure, completion of vacancies, the
renewal of its composition, the sequence of appointments, the appointing bodies entitled to appoint
or elect, and the authorized institution for the verification, evaluation, scoring and ranking of
candidates for the members of the Constitutional Court, are defined in the Constitution of the Republic
of Albania, Law No 8577/2000 "On the Organization and Functioning of the Constitutional Court",
as amended, Law No 115/2016 “On the Governance Bodies of the Justice System”, as amended.
The constitutional amendments endorsed in the context of judicial reform on 21 - 22 July 2016,
included detailed provisions on modus operandi to elect the members of the Constitutional Court
would be elected, as well as to re-composition of this Court.
The Constitution of the Republic, Article 125, para 1 and 2, stipulates that the Constitutional Court
consists of 9 members. 3 members are appointed by the President of the Republic, 3 members are
elected by Parliament and 3 members are elected by the Supreme Court. Members are selected among
candidates ranked in the top 3 of the list provided by Justice Appointments Council, according to
Law. Parliament elects a judge for the Constitutional Court by no less than 3/5 of all its members.
2 In the framework of the request of the Speaker of the Parliament of Albania to the Venice Commission,
4531 prot, date 30.12.2019.
5
If Parliament fails to elect a judge within 30 days from the submission of JAC list, the candidate
ranked first in the list shall be considered appointed.
This constitutional amendment has been of particular importance, insofar as, in the same provision of
Article 179, para 2, 3 and 12, clearly specifies the period and the sequence of appointment/election
of the Court members:
“[…] 2. The first member to be replaced in the Constitutional Court shall be appointed by the
President of the Republic, the second shall be elected by Parliament and the third shall be appointed
by the Supreme Court. This shall be the sequence for all future appointments after the entry into
force of this law.
3. Aiming at the regular renewal of the Constitutional Court, the new judge who shall succeed the
judge whose mandate will end in 2017 shall remain in office until 2025 and the new judge who will
succeed the judge whose mandate will end in 2020 shall remain in office until 2028. The other
Constitutional Court judges shall be appointed for the entire duration of the mandate in accordance
with the law. [...]
12. The President of the Republic shall remain as Chairperson of the High Council of Justice until
the High Judicial Council is established within 8 months from the entry into force of this law. Upon
the establishment of the High Judicial Council, the President shall appoint the judges of the High
Court in accordance with Article 136 of the Constitution. The President of the Republic shall fill in
the first vacancy in the Constitutional Court under paragraph 2 of this Article and Article 125 of
the Constitution.”.
These constitutional amendments regarding modus operandi in the appointment/election of members,
including the sequence of each appointing body have been reinforced also in Articles 7, 7/a, 7/b and
86, para 4 of Law No 8577/2000, “On the Organization and Functioning of the Constitutional Court
of the Republic of Albania”, as amended, stipulating detailed provisions on how these prerequisites
shall be fulfilled.
The Law on the Constitutional Court in the abovementioned provisions, inter alia, stipulates that this
rule applies also in cases of termination of a mandate prior to term expiration of a Constitutional Court
member, also specifying the sequence of appointment for each vacancy created or to be created
thereof (Article 86, paragraph 4 of Law No 8577/2000).
Article 86, para 4, of Law No 8577/2000 also stipulates the modus operandi of reappointment of the
members of the Constitutional Court:
“4. The renewal of Constitutional Court judges until 2022, shall take place under the following
scheme:
a) The judges who will replace the judges whose mandate expires in 2016, shall be
appointed according to sequence, respectively by the President of the Republic and by Parliament.
b) The judge who will replace the judge whose mandate expires in 2017 shall be appointed by
the High Court and shall stay in office until 2025.
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c) The judges who will replace the judges whose mandate expires in 2019 shall be appointed
according to sequence, respectively by the President of the Republic and by Parliament.
ç) The judge who will replace the judge whose mandate expires in 2020, shall be appointed
by the High Court and shall stay in office until 2028.
d) The judges who will replace the judges whose mandate expires in 2022, shall be appointed
according to sequence, respectively by the President of the Republic, by Parliament, and by the High
Court.
The Constitution in Article 149/d provides that JAC checks the legal conditions and makes an
assessment of professional and moral criteria of the candidates for the High Justice Inspector, as well
as for the members of the Constitutional Court. JAC examines and ranks the candidates according to
their professional merits. The ranking of candidates is not binding, except for cases when it is not
possible to appoint a candidate.
JAC consists of 9 members selected by lottery, among judges and prosecutors who are not under
disciplinary measures. Between 1-5 December of each year, the President of the Republic selects by
lottery two judges from the Constitutional Court, one judge from the High Court, one prosecutor from
the General Prosecution Office, two judges and two prosecutors from the Courts of Appeal and one
judge from the Administrative Courts.
JAC serves a 1-year term beginning on 1 January of each calendar year. The Chair of JAC is a member
of the Supreme Court.
The organization and functioning of the JAC is stipulated in Articles 217-242 of Law No 115/2016
'On the Governing Bodies of the Justice System' as amended, including provisions of Law No 8480,
dated 27.05.1999 “On the functioning of the collegial bodies of the state administration and public
entities”.
JAC exercises its activity in a collegial manner, functioning therefore as a collegial administrative
body.
According to Article 229-230 of Law No 115/2016, JAC has the responsibility to endorse the rules
on organization and functioning of JAC, and more specific provisions on the selection and assessment
of candidates, including on the procedure for verification of their property, integrity, professional and
personal background.
The powers of JAC Chair are stipulated in Article 226 of Law no. 115/2016 as follows:
“Article 226
Chair
1. The member of the High Court is the chairperson of the Justice Appointments Council.
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2. The chair of the Council performs the following functions:
a) prepare, call and chair the Council meetings;
b) represent the Council in relation to third parties;
c) ensure administrative, organizational and financial support of the High Court for the functioning
of the Council;
ç) prepare and publish on High Court official website the Annual Report of JAC activities;
d) ensure that the Council meeting is recorded through the audio recording system and that a transcript
of Council meeting is kept and published on the website of the High Court. The meeting transcript is
presented to the members of the Council before it is published. If any of the members is not satisfied
with the accuracy of the meeting transcript, the chair of the council commands its comparison
juxtaposed to the audio recording and its due change if the claims of the member are correct;
dh) make sure to document the meeting of the council and maintain documentation in accordance
with the law on archives;
e) sign the acts of verification, assessment and ranking and forward them to the designated bodies.
ë) perform any other tasks assigned by law.”
According to Article 149/d of the Constitution and Article 233 of Law No 115/2016, the Ombudsman
participates as a permanent observer in JAC meetings and activities and drafts a report on JAC activity
and its election.
According to Article 233 of Law No 115/2016, representatives of the President of the Republic, of
the Speaker of Parliament, and 2 members of the permanent parliamentary commission for legal
affairs, one of whom from the opposition, are invited to participate in JAC meetings.
II. Obstruction of JAC for 2017-2018 immobilized the Constitutional Court
One of the most notable moments of the misuse of the Justice Reform was neutralization of the
Constitutional Court for more than 2 (two) years.
JAC functioning is key to replacing the vacancies for the Constitutional Court. JAC makes the
assessment, ranking and lists of the candidates for members of the Constitutional Court, and delivers
them to designated bodies (President, Assembly, Supreme Court) for respective appointments.
8
Following the adoption of Constitutional Amendments (July 2016), the Assembly has organized the
lottery for 3 Justice Appointments Councils, in 2017, 2018, 2019, while JAC 2020 lottery was
organized the President of the Republic on 05.12.2019.
The two elected Councils (during 2017 and 2018) did not function, because they were deliberately
blocked by the Prime Minister and the representatives of the Socialist Party.
The President of the Republic has continuously denounced Prime Minister's efforts to keep
Government and Parliament outside of Constitutional control, as well as his attempts to politically
capture key institutions of the new judicial system.
On 27 January 2017, Parliament organized the lot in the most transparent way and elected for the first
time the Justice Appointments Council. This was the first key moment for the establishment of new
institutions of the Justice system after the Constitutional amendments.
No Judge or Prosecutor objected either the lists of the candidates participating in the lot for the
election of JAC, or the results of the lot.
But Prime Minister Rama, 4 days after the lot, expressed his public disapproval regarding JAC
members. On 31 January 2017, Prime Minister Rama, publicly threatened all JAC members, and
blackmailed them anticipating their expulsion through vetting. Prime Minister openly admitted that
he had the power not only to block the Council, but also to discharge them if he so wished.3 Following
this public pressure by the Prime Minister, the JAC members resigned. In addition, some JAC
members were discharged from the basic function by the vetting process.
Therefore, Prime Minister Rama attacked the very first new institution of the Justice Reform, only
because the members of Justice Appointments Council do not correspond to the political interests of
the Prime Minister. This Council was never gathered and its mandate expired on 31.12.2017,
without holding a single meeting.
If JAC 2017 were operational, the Constitutional Court vacancies would have been fulfilled. A
functional Constitutional Court would then be able to control the activity and decisions of the Prime
Minister, Government, Assembly and all the other institutions.
On 7 December 2017, the Assembly organized again the lot and elected the new Justice
Appointments Council for 2018. Again, the same problem repeated itself. The elected members
from the lot, again were disapproved by Prime Minister Rama and the Socialist Majority led by him.
3 Statement by the Prime Minister of Albania, Mr. Edi Rama, dated 31 January 2017, attacking members of
the JAC who were elected by lot: http://top-channel.tv/video/rama-kunder-ked-gjysma-ikin-nga-vettingu/
9
The President of the Republic, on February 2018, formally requested JAC to meet and examine with
precedence all the candidacies submitted for all the vacancies for the Constitutional Court.
The President of the Republic, on February 2018, asked JAC to convene and exercise their
constitutional functions. However, the Chair of Legal Parliamentary Commission, Mr. Ulsi Manja,
on 5 March 2018, in a public statement4 asked JAC members to pass the vetting prior to commencing
their functioning for the assessment and ranking of the candidates for the Constitutional Court.
On 19 March 2018, the Chair of the Legal Parliamentary Commission, Mr. Ulsi Manja,
participated in the first and only 2018 JAC meeting. He used this appearance to publicly blackmail
JAC members. Mr. Manja insisted that JAC should gather for administrative activities, but not for
the assessment and ranking of candidates for the Constitutional Court5.
The Chair of the Legal Parliamentary Commission, Mr. Ulsi Manja demanded JAC members to not
exercise their function, with an alibi of a transitional provision whose deadline had already expired.
The commitment of Mr. Manja on the wetting process of the members of JAC, concerning the
exercising their function is contested as well by the Albanian member of the Venice Commission and
constitutional expert of the Judiciary Reform, Prof. Dr. Aurela Anastasi. 6
As a consequence, after 19 March 2018, JAC never gathered again.
Thus, the functioning of the Justice Appointments Council was blocked for another (one) year.
The Chair of Legal Parliamentary Commission, Mr. Ulsi Manja is also Chair of the Parliamentary
Investigative Committee established against the President of the Republic, which is now
investigating, among other things, the President's appointment of a member of the Constitutional
Court!
Prime Minister Rama and his parliamentary majority blackmailed the Justice Appointments Council
for two years, 2017 and 2018, and blocked the appointment of new Judges to the Constitutional
Court, while the vetting process was completely emptying the Constitutional Court.
kaluar-vetting-un 5 Date 19.03.2018, Meeting of JAC, Transcript, page 10,
http://www.gjykataelarte.gov.al/ëeb/Procesverbali_i_mbledhjeve_184_1.php 6 Statement by the Venice Commission Member Ms. Aurela Anastasi on the vetting process of the JAC
https://www.youtube.com/watch?v=pjQdXk3ZJlw&app=desktop minuta 31.25 – 38.05
https://www.youtube.com/watch?v=gAd7z4var58 min 17.40 – 20.35 8See Decision of Constitutional Court No 55/2016 declared on 27.07.2016, and published in the Official
Gazette No 152, dated 12.08.2016 (entry in force in the same date). Delayed publishing in the Official Gazette
“coincided” with the entry in force of the constitutional amendments (11.08.2016). 9 Law No 76/2016 “On some additions and amendments of Law No 8417, dated 21.10.1998, “Constitution of
the Republic of Albania”, as amended, was promulgated by the Decree No 9706, dated 26.07.2016, published
in the Official Journal No 138, dated 27.07.2016 and entered into force on the date 11.08.2016.
12
All facts related to political affiliation and influence ensuring extension of Ardian Dvorani’s mandate
as Supreme Court Judge, beyond reason and Constitutional requirements, taken separately or
together, infringe the legitimacy and credibility of the activity of JAC.
The activity of JAC Chair has been a showcase of returning political favors to the ruling
socialist majority. Inter alia, his deliberate distortion of constitutional sequence in delivering
the candidates lists for appointment, seeked to disable the President in exercising his
constitutional power and ensure control of the Constitutional Court by the socialist majority.
III. The problems created by the JAC 2019 by-laws
The restriction of Ombudsman’s participation in JAC activity.
JAC adopted 3 by-laws regulating: the organization and functioning; the verification of candidates;
the assessment and ranking of the remaining candidates in the competition.
By approving these acts, JAC has at some point exceeded the limits set by the Constitution and the
Law in regulating some essential issues of how to exercise its competences.
The Constitution in Article 149/d, 179/11 and Article 233 of Law No 115/2016 “On the Governing
Bodies of the Justice System” clearly defines the role of the Ombudsman as a subject participating in
the meetings and activities of JAC, as a permanent observer with an active guarantor role of respecting
the legal rights and freedoms of the individual during the all JAC activity.
With the approved by-laws, JAC decided that the discussions on different matters within JAC, as well
as the voting of Decisions, take place only in the presence of the Council Members, so limiting this
Constitutional right. JAC denied to the Ombudsman a right as stipulated in the Constitution and Law,
excluding it from monitoring the process of discussions and voting.
Even though these issues were raised at JAC meetings before and after the by-laws were approved,
there was no response or reflection on this matter.
Law No 8577/2000 “On the Organization and Functioning of the Constitutional Court”, as amended
by Articles 7/b, paragraph 3; 7/c, paragraph 4 and 7, states that if more than one vacancy exists, the
Council drafts two separate lists. One of the lists contains candidates coming from the judiciary, so
that JAC and then the appointing bodies can have objective possibilities to act in full compliance with
the norm, in order to ensure a balanced composition of the Constitutional Court among the magistrate
and non-magistrate candidates.
13
Contrary to this legal requirement, JAC vested itself with the attributions of the legislator and
approved the By-law - Decision No 5, 02.04.2019, with a transitional provision (letter "ë" of the
Decision), suggesting that it will submit to appointing bodies a single final list of ranked candidates
for each vacancy.
So JAC, in contradiction to Law, forwarded to the appointing bodies (President, Assembly) one list
for each vacancy.
Regarding these and other matters, the Ombudsman filed a lawsuit in December 2019 to the
Administrative Court of Appeal, opposing all JAC By-laws mentioned above.
JAC's position on vetting of candidates, subject to Law No 84/2016.
JAC, in its by-law, Decision No 4, dated 11.03.2019 “On the procedure of verification of candidates
for the vacancies in the Constitutional Court and the High Justice Inspector”, decided that for
candidate Judges in the Constitutional Court and High Justice Inspector, the verification of meeting
the legal requirements for having successful passed the asset verification and the integrity check shall
be based on the decision issued by the Independent Qualification Commission (IQC) (first
instance) notwithstanding awaiting decision of the Special Appeal College.
According to this JAC act, a magistrate candidate who has successfully passed the first level of vetting
in IQC is allowed to run and is not subject to asset and integrity verification procedure provided for
in Articles 235 and 236 of the Law No 115/2016.
The JAC standard to consider only the first instance decision of the vetting bodies, i.e. the IQC,
without waiting for the decision of the Special Appeal College, could result that a winning candidate
for a vacancy in the Constitutional Court, after being appointed would still risk of being dismissed by
the Special Appeal College.
In this way, an early vacancy in the Constitutional Court would be recycled again, leading to a severe
infringement of public confidence about the new institutions of the justice system.
For this reason, the representative of the President of the Republic and the Ombudsman, asked JAC
to not approve this by-law, but JAC did not reflect upon this request. Consequently, JAC included in
its lists forwarded to the President of the Republic and the Albanian Assembly, in the list the
magistrate candidates who had not completed the transitional reassessment process by a final decision
(candidates Besnik Muçi and Regleta Panajoti).
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After the President of the Republic, on October 15th 2019, elected Mr. Besnik Muçi, as a Judge in the
Constitutional Court, it happened that the Special Appeal College was reactivated, and by its Decision
dated 21st of November 2019, decided to accept the complaint of the Public Commissioner and
dismiss Mr. Muçi, by creating again a premature vacancy in this court and delaying the process of
forming of a functional Constitutional Court for other several months.
Failure to transcript and publish the minutes of JAC Meetings
According to the provisions of Article 226, 232 of Law No 115/2016, but also in compliance with the
paragraph 17 of the decision of JAC No 1, dated 08.02.2019, the Chair of JAC has the responsibility
of ensuring the maintenance, administration, publication, consulting, approval and publishing on the
Supreme Court website the minutes of each Council meeting. The examination of the minutes should
be carried out at the next council meeting and the publication of their summary, in addition to being
a legal obligation, ensures the implementation of the principle of transparency.
During its 2019 activity, JAC held 39 (thirty-nine) meetings. Throughout 2019, JAC neither
examined, nor approved any transcripts in its meetings. All transcripts for every JAC meeting were
published and approved only in December 2019, at the end of JAC 2019 mandate.
On the Supreme Court's website, for one consecutive year, until 30th of December 2019, only the
minutes of the first JAC meeting were published, although the representative of the President and the
Ombudsman continuously requested during the JAC meetings the transcription of minutes.
The President of the Republic, on 19.11.2019, filed criminal charges against Chair of JAC to the
Special Prosecutor Office SPAK, accusing him of the criminal offense of "Abuse of Duty"10, provided
by Article 248 of the Criminal Code.
The Institution of the President of the Republic has published two video-spots which clarify all
constitutional and legal violations of JAC Chair related to appointment of Constitutional Court
V. The procedures followed by JAC to verify the candidates for the Constitutional Court and
judicial processes.
The Judicial Appointments Council 2019, following the adoption of the bylaws in April 2019,
officially began the process of verifying, evaluating, scoring and ranking the candidates for all 6
vacancies to be filled by the President and the Assembly.
Within 2019, JAC was able to conclude the verification, evaluation and ranking of candidates for only
4 vacancies, where 37 candidates applied. During this process, 15 candidates withdrew their
application in the course of verification, whereas JAC decision disqualified 20 others.
Meanwhile, during June-July 2019, some candidates appealed JAC decisions to the Administrative
Court of Appeal, challenging their disqualification, claiming that JAC had unfairly disqualified them.
The Administrative Court of Appeal reviewing both JAC decisions for disqualifying a candidate from
running for two vacancies, concluded that some procedural actions and JAC assessments constitute
serious violation of the procedure determined by law, thus, resulting in an absolute invalidity
of JAC decisions. The Administrative Court of Appeal with the decision no. 201, dated
22.08.201912 decided to repeal both JAC decisions and to return the case to the Council for
reassessment.
On August 31, 2019 the President of the Republic with the document Prot. no. 2941/1, dated
31.08.2019 13, addressed JAC, requesting a rigorous implementation of the Constitution and of
the law, and requesting that the Council show great caution throughout its activity, as any
problem or shortcoming undermine the trust of the public, of the candidates, of the appointing
bodies, constituting at the same time a violation of the principle of a due legal process.
The President of the Republic, in the above letter, inter alia requests JAC that:
“This emergency situation subjectively created by the blocking and non-functioning of the Council
during 2017-2018, cannot tolerate the fact that the current JAC makes extensive and creative
interpretations for certain issues, beyond the powers provided by the Constitution and the law,
particularly when taking into consideration that the requests of the appointing bodies for filling the
vacancies date from February-March 2018.
12 The decision no.201 of the Court:
http://www.gjykataelarte.gov.al/web/vendim_nr_201_dt_22_08_2019_zhaklina_peto_2208.pdf 13 See attached the letter of the President of the Republic Prot. No. 2941/1 dated 31.08.2019 addressed to
The Justice Appointments Council must comply with the requirements of the Constitution and of the
laws to assure the appointing bodies (President, Assembly, High Court), as well as all citizens of
the Republic of Albania that the candidates verified, qualified, evaluated and listed by the Council,
have the highest professional and moral qualities to be members of the Constitutional Court or the
High Justice Inspector.
The President of the Republic brings to the attention of the Justice Appointments Council that taking
into account the role and importance of the Constitutional Court in the proper functioning of the rule
of law, it is necessary that this important and unique body of constitutional law be functional as soon
as possible.
The President encourages the Justice Appointments Council to cooperate with the bodies assigned
by the law to accomplish at the earliest moment the fulfillment of the functional duties for the
verification, evaluation and scoring of candidates pursuant to the requirements of the Constitution
and the law, submitting the lists with the necessary number of candidates evaluated and ranked for
each vacancy to the Institution of the President of the Republic and to the Assembly of Albania, to
allow for the appointing bodies to elect in the shortest time possible the new members of the
Constitutional Court , so that this Court can function as soon as possible to make decisions and
resolve a number of issues that concern all social life in the country. "
VI. JAC procedures for evaluating, scoring and ranking the candidates.
In September, JAC completed the verification process of the candidates for 4 vacancies, and only 6
candidates were shortlisted, with most of them applying for all 4 vacancies simultaneously.
On 21.09.2019, JAC approved the final lists, the ranking of the candidates and the evaluation reports
for the eligible candidates applying for all the 4 (four) published vacancies, which are
appointed/elected by the appointing body of the President of the Republic and of the Assembly of
Albania through four different decisions provided as follows:
1. Decision no. 128 dated 21.09.2019 and decision no. 129, dated 21.09.2019 approving the Final
List, the Ranking of the Candidates and the Reasoned Report for the published vacancy to be
filled by the President of the Republic on the 07.02.2018.
2. Decision no. 130, dated 21.09.2019 and decision no. 131, dated 21.09.2019 approving the Final
List, the Ranking of the Candidates and the Reasoned Report for the published vacancy to be
filled by the Assembly of Albania on the 12.02.2018.
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3. Decision no. 132, dated 21.09.2019 and decision no. 133, dated 21.09.2019 approving the Final
List, the Ranking of the Candidates and the Reasoned Report for the published vacancy to be
filled by the President of the Republic on the 04.03.2019.
4. Decision no. 134, dated 21.09.2019 and decision no. 135, dated 21.09.2019 approving the Final
List, the Ranking of the Candidates and the Reasoned Report for the published vacancy to be
filled by the Assembly of Albania on the 04.03.2018.
Pursuant to Law no. 115/2016, these decisions were published on the official website of the High
Court.
Referring to the numbering system of the decisions by JAC, it turns out that the Justice Appointments
Council as a collegial body has reviewed and made separate decisions for each published vacancy
and has approved the final ranking list for each vacancy published by the appointing bodies,
complying with the sequence to be followed for the appointment/election of new constitutional
judges provided for in Article 179, paragraph 2, 12 of the Constitution, Article 7 paragraph 2
and Article 86 paragraph 4 of the Law no. 8577 dated 10.02.2000 “On the organization and
functioning of the Constitutional Court of the Republic of Albania”, as amended.
The ranking of the candidates and the drafting of the 4 lists for both institutions - the President of the
Republic and the Assembly - were made by JAC on 21.09.2019, and the numbering of the decisions
is alternated according to the sequence provided for by the constitution and the law, and
according to the sequence of publishing and filling of the vacancies which are designated to the
President and the Assembly.
19
The ranking of candidates for each vacancy approved by JAC:
During this meeting (21.9.2019), the Representative of the President of the Republic requested
that JAC respect also the sequence of submitting the lists to each of the appointing bodies in
order not to create any difficulties or problems in this process.
Whereas the Ombudsman noted that with this limited number of candidates and with the same
names being repeated in each of the lists, JAC was predetermining the composition of the
Constitutional Court, and that the right of the appointing bodies to s/elect was being restricted.
VII. The unconstitutional and illegal procedure of submitting the lists to the appointing bodies
(President, Assembly) by JAC Chair.
JAC Chair submitted the lists of candidates to the President of the Republic for filling 2 (two)
vacancies simultaneously 14, document Prot. no. 552 and document Prot. no. 553 dated 8 October
2019.
14 For more information, see JAC Chair documents Prot. No. 552 dated 08.10.2019 and Prot. No. 553 dated
08.10.2019.
PRESIDENT
Vacancy published
for application
07 February 2018
ASSEMBLY
Vacancy
published for
application
12 February
2018
PRESIDENT
Vacancy published for
application
4 March 2019
ASSEMBLY
Vacancy published
for application
4 March 2019
CANDIDATES
RANKED BY JAC
CANDIDATES
RANKED BY
JAC
CANDIDATES
RANKED BY JAC
CANDIDATES
RANKED BY JAC
1. Arta Vorpsi
2. Elsa Toska
3. Besnik Muçi
4. Regleta Panajoti
1. Arta Vorpsi
2. Elsa Toska
3. Besnik Muçi
1. Arta Vorpsi
2. Fiona Papajorgj
3. Elsa Toska
4. Marsida Xhaferllari
1. Arta Vorpsi
2. Fiona Papajorgji
3. Elsa Toska
20
JAC has not taken any collegial decision to alter the time and manner of submitting the lists to
the appointing bodies. The administrative action of delivering the lists, different from what was
decided by JAC, is performed individually by the Chair of Justice Appointments Council, who
pursuant to Article 226 paragraph 2/e of Law no. 115/2016 may only sign the acts of verification,
assessment and ranking and submit them to the appointing bodies.
On 10 October 2019, the President of the Republic, given that the same applicants were on both lists,
on those submitted to the President as well as on those approved for the Assembly with the document
Prot. no. 3571 dated 10.10.201915, asked JAC Chair to provide further information of whether he
had submitted the lists of candidates for the two vacancies to the Assembly of Albania. The President
addressed JAC chair pursuant to the principle of constitutional loyalty (cooperation) and with the aim
of avoiding that the selection of the constitutional judge by him would affect the number of candidates
to be submitted to the Assembly. A possible selection by the President, without respecting the
Constitutional sequence of appointment, could theoretically lead, and de facto place the Assembly
under the conditions of practical impossibility to have the indispensable number of candidates to elect.
JAC Chair with the document Prot. No. 655 dated 14 October 2019, informed the President of the
Republic “today with the document Prot. No. 653 dated 14.10.2019 and with the document Prot. No.
654 dated 14.10.2019 has forwarded and submitted to the Assembly of the Republic of Albania the
Final Lists of Ranking of the Candidates and the Reasoned Reports for their Ranking for filling the 2
(two) vacancies simultaneously by the Assembly of the Republic” 16.
Thus, JAC Chairman, on 14 October 2019 (only 6 days after the submission of the lists to the
Institution of the President) performed the administrative process of submitting the lists to the
Assembly for filling both designated vacancies, simultaneously. In his response, JAC Chairman
did not provide any explanation why the two lists were submitted to the President simultaneously, or
of the reasons for the deliberate delay in submitting the two simultaneous lists to the Assembly, thus
with a one-week difference. These individual administrative actions of JAC Chair failed to comply
with both, the time and the sequence of drafting and approving the lists, and the mandatory sequence
of appointment set out by the Constitution and the law.
Therefore, according to JAC Chair the President would have to express himself within the 7 of
November 2019 for appointing two judges of the Constitutional Court simultaneously, prohibited
by the Constitution, pursuant to Article 179, paragraphs 2, 12 of the Constitution and Articles
7, 7/b and 86, paragraphs 4/a/c of Law no. 8577/2000.
15 For more information, see document Prot. No. 3571 dated 10.10.2019 of the Institution of the President of
the Republic. 16 For more information, see JAC Chair document Prot. No. 655 dated 14 October 2019.
21
Article 179 paragraphs 2 and 12 of the Constitution stipulates that:
“2. The first member to be replaced in the Constitutional Court shall be appointed by the President
of the Republic, the second shall be elected by the Assembly and the third shall be appointed by the
High Court. This shall be the order for all future appointments after the entry into force of this
law. […]
12. The President shall fill in the first vacancy in the Constitutional Court under paragraph 2 of
this Article and Article 125 of the Constitution.”
Pursuant to these provisions of the Constitution, the President of the Republic, cannot appoint
two judges simultaneously, or two judges one after the other, but only the first member,
meanwhile the second member of the Constitutional Court should be appointed by the
Assembly and the third by the High Court.
With regard to the case in question, the member to be appointed by the High Court to replace the
judge Ms. Vitore Tusha, whose mandate, according to the Constitution, has expired since March 2017,
who is still on duty waiting for her successor.
Each of the appointing bodies has a 30-day deadline to express themselves. With regard to the
Assembly, this deadline is provided for by Article 125 of the Constitution, whereas for the
President this deadline is only provided for by Law no. 8577/2000, Article 7/b, paragraph 4.
As of the moment of having submitted the lists, the legal deadline for the President had begun to run
simultaneously for both vacancies at the same time from 9.10.2019, and for the Assembly the
constitutional deadline had begun to run simultaneously for both vacancies from the date 15.10.2019.
Thus JAC Chair submitted the list of candidates to simultaneously fill the two vacancies pertaining
to the President of the Republic, seeking to place the President of the Republic under a situation of
constitutional impossibility and establish a state of fait accompli. The President would have to express
himself within the 30-day legal deadline also for 3rd appointment before the Assembly expressed itself
on the appointment of the second constitutional judge. This would constitute a direct violation of the
constitution by the President.
VIII. Appointment of the first Constitutional Judge by the President of the Republic.
The President of the Republic after having reviewed the practice and documents submitted by JAC
on the date 08.10.2019, and after ensuring that the Assembly administered the lists of candidates
submitted by JAC, fulfilled without any further delay his constitutional obligation for appointing the
first member of the Constitutional Court.
22
With the Decree no. 11313, dated 15.10.201917, Mr. Besnik Muçi, was appointed a member of the
Constitutional Court.
In the reasons attached to Decree no. 11313, dated 15.10.2019, the President of the Republic,
among other things, has stated that: “Having highly appreciated the role and importance of the
Constitutional Court in the proper functioning of the rule of law, the President of the Republic has
decided to express himself without further delay for the appointment of the candidate selected by him,
so that this decision be followed by a decision of the Assembly of Albania for the election of the
second member of the Constitutional Court, with the aim of having a functional Constitutional Court
as soon as possible, to make decisions and to provide a constitutional solution to a number of issues
that concern all social life in the country ”.
By this act, the President of the Republic, inter alia, pursuant to the principle of constitutional loyalty,
has requested the cooperation of the Assembly that the latter elect the second member of the Court,
for then the President to proceed with the election of the other member, according to the sequence
provided for by the constitution.
This Decree was published on the official website of the President of the Republic18, was available to
media, and was forwarded to the Chairman of the Assembly, to the Constitutional Court, to the
Ombudsman, to the High Council of Justice, to the High Prosecutorial Council, to the Judicial
Appointments Council, to the General Prosecution Office and to the Prosecution Office attached to
the First Instance Court of Serious Crimes with the document Prot. no. 3665 dated 16.10.2019. In
the meantime, immediately on the date 18.10.2019, the President of the Republic organized the
swearing in ceremony of this judge, inviting all the above-mentioned institutions and diplomatic
representatives19. Following this moment, judge Besnik Muçi began exercising his mandate.
IX. Decision of the President of the Republic to temporarily suspend the process of
administrative review of the list and of documentation for filling the vacancy for the
appointment of the judge of the Constitutional Court.
Following the appointment of the first constitutional judge, the President of the Republic has been
awaiting the decision of the Assembly of Albania for the election of the second member of the
Constitutional Court according to the sequence provided for by the Constitution Article 179,
paragraph 2, 12 and Law no. 8577/2000, Article 7/a, Article 86 paragraph 4.
This rule, stipulated by the Constitution and reinforced several times by Law of the Constitutional
Court no. 8577/2000, must be upheld not only by the relevant institutions (President, Assembly, High
17 For more information, see decree no. 11313, dated 15.10.2019 and the reasoning attached to this decree. 18 For more information see: https://president.al/presidenti-meta-dekreton-emerimin-e-zotit-besnik-muci-gjyqtar-te-
On the same date, following JAC meeting, JAC Chairman with the document Prot. No. 714 dated
07.11.2019 responded to the President, submitting the documentary practice administered and
examined by JAC for all the 4 (four) listed candidates to fill the vacancy by the President of the
Republic.
XI. Assigning the plenary session for the Assembly to vote the candidates of the Constitutional
Court
The Speaker of the Assembly of Albania, after being notified of the suspension act Prot. No. 3535/1
dated 05.11.2019 of the President pertaining to the temporary administrative suspension of examining
the list, and coincidentally on the same date of JAC meeting, 7th of November 2019, issued Order
No. 35, dated 07.11.2019 “For Convening the Assembly in a Plenary Session on the date 11.11.2019” 22.
The agenda of the plenary session of the 11th of November 2019 included also two draft resolutions
for electing the two members of the Constitutional Court with regard to the vacancies published by
the Assembly. According to this Act, it is noted that the Albanian Assembly did not respond to the
repeated requests of the President of the Republic to vote in the plenary session only the second
member, according to the sequence set by the Constitution, so that the President would then express
himself for the election of the subsequent member.
XII. The publication in the Official Gazette of JAC Decision No 132 dated 21.09.2019 in
contradiction with the Law.
On Saturday (a day-off), on the 9th of November 2019, the Decision of the Justice Appointments
Council no. 132 dated 21 September 2019 “On the approval of the final list of the ranking of
candidates applying for the vacancy, full term vacancy of judge in the Constitutional Court as
published by the President of the Republic on 04.03.2019” was published in the Official Gazette No.
15123.
This decision had been already published on 22nd of September 2019 on the website of the High Court,
following JAC collegial decision, paragraph 2, which states that: “This decision is published on the
official website of the High Court, under the section designated for the Justice Appointments
Council”; and as stipulated by Law No 115/2016 “On the Governance Bodies of the Justice System”,
Article 232 defining that “the acts of evaluation and ranking shall be published on the official website
of the High Court”.
22 https://www.parlament.al/Document?tipId=1&dokumentId=3764 23 Publishing or failure to publish in the Official Gazette in contravention with the Law has now become a
tradition by the Socialist Majority to accomplish political goals. We note that even in the case of the Head of
JAC Ardian Dvorani staying in office beyond the constitutional mandate was accomplished precisely by failing
to publish the decision of the Constitutional Court on time in the Official Gazette. The misuse of the Official
Gazette was also noted by the OSCE/ODIHR on its report for the election process of the 30th of June 2019.
The President presented himself in person to the Prosecution Office and has provided explanations
and additional details in relation to the report filed. Afterwards, the prosecution has summoned the
accused Ardian Dvoranit to provide an explanation, including questioning of the Ombudsman, and of
some of JAC members. This criminal report is currently under investigation by the Special Anti-
Corruption Prosecution (SPAK).
XIX. The activity of the Assembly supporting the Chair of JAC, Ardian Dvorani.
As soon as the President of the Republic filed a criminal report and published the details observed
during the illegal activity of the Head of JAC, the Parliamentary Group of the Socialist Party
immediately invested themselves in providing Ardian Dvorani with political protection for his
actions.
The Socialist Parliamentary Group, on 21 November 2019 (two days following the submission and
publication of the criminal report by the President) submitted to the Assembly a request to expand
the scope of the Parliamentary Investigative Commission “On scrutinizing the legitimacy of the
actions carried out by the President of the Republic in the context of exercising his powers with regard
to setting the date of elections for the local government bodies”.
On the basis of this request the Assembly of Albania with Decision No.140 dated 05.12.2019 decided
to expand the scope of the activity of the Investigative Commission, to extend its deadline with 4
more months and to include in the subject: “On scrutinizing the legitimacy of the actions carried out
by the President of the Republic in the context of exercising his powers with regard to the holding of
elections for the local government bodies and on scrutinizing the legitimacy of the actions and
procedures followed by the President of the Republic in the context of the appointment of
Constitutional Judges”.
In relation to the activity and the initial scope of the Parliamentary Investigative Commission, the
Venice Commission has already issued Opinion No 959/2019, dated October 14, 201934. Even
though it was expected that the Assembly would conclude on the scope of Parliamentary
Investigative Commission following the advice of the Venice Commission Opinion, the Assembly
did the opposite.
XX. Legislative initiative of the Assembly to amend the Law on the Constitutional Court.
With a view to legitimizing the notarial statement of the candidate Arta Vorpsi and to certify it as an
act of swearing in office as a Constitutional Judge, the Socialist majority officially launched a new
legal initiative35. Three members of the Socialist Parliamentary Group, also members of the
34 See attached the Final Opinion of the Venice Commission No 959/2019 dated 14 October 2019. 35 https://www.parlament.al/ProjektLigje/ProjektLigjeDetails/51305
Parliamentary Investigative Commission, submitted to the Assembly a legal initiative, which seeks
to infringe the Constitutional provision of swearing in office to the President of the Republic,
providing a retroactive effect to private swearing in office, outside the President’s office.
The Draft Law “On some additions and amendments to Law No 8577 dated 10.02.2000, “On the
Organization and Functioning of the Constitutional Court”, as amended, was submitted to the
Assembly on the 6th of December 2019. It is obvious that the socialist majority is determined to further
frustrate the balance of the Constitutional Court, and ensure its capture at all costs.
XXI. The sui generis crisis of representation of the Albanian Assembly.
Strong political polarization prevailed during 2018-2019. Lack of political dialogue between the
majority and the opposition deepened the divisions and mistrust between the parties. The juxtaposed
positions grew further apart when opposition relinquished en bloc their parliamentary mandates after
the majority voted against their initiative to extend the vetting process to the entire political class.
In total, 182 MPs and candidate MPs refused their parliamentary mandates. Current Parliament has
122 MPs, unable to fill the constitutional quorum of 140 seats, due to exhausted opposition lists.
The absence of a functioning Constitutional Court for more than two years contributed to
further escalate to this crisis.
The opposition did not register in local elections. The government decided to run one-party voting on
30 June 2019, resulting with all municipalities and municipal councils practically run by the same
governing Socialist Party.
Parliament started an impeachment procedure against the President of the Republic and set an
Investigative Parliamentary Commission to impeach the President.
Currently the Socialist Party has seized almost all powers, the executive, legislative, local government
and almost all independent institutions.
Recently, Parliament adopted another controversial legislative package restricting the freedom of
expression and seeking to control the on-line media, triggering another uproar at home and abroad.
38
A. QUESTIONS OF THE PRESIDENT OF THE REPUBLIC FOR AN OPINION OF
THE VENICE COMMISSION
For more than a year, Albania has been in a sui generis unprecedented political, constitutional,
institutional and representative crisis.
Under the conditions where the country is:
Without a functional Constitutional Court for more than two years;
Without a functional Supreme Court;
The judicial system is widely perceived as paralyzed or captured by the ruling majority;
With a mono-party Parliament with 122 MPs, failing to fulfill the constitutional quorum of 140
seats, due to the en bloc resignation of 182 opposition MPs and candidate-MPs from Parliament;
With Government, Parliament, all Municipalities and City Councils in the hands of a single
party, including almost all independent bodies.
Considering that the Venice Commission opinions are a reference source for all member states, and
in need of reflecting on current state of affairs in Albania, I would like to put forward the following
questions to clarify the model of a functioning democracy and the rule of law based on the principles
of the European Convention of Human Rights.
I. EXPANSION OF THE SCOPE OF THE INVESTIGATION COMMISSION BY THE
MONO-PARTY PARLIAMENT
In Opinion No. 959/2019 CDL-AD (2019) 019, the Venice Commission notes that:
“78. At the time of the preparation of this opinion, the Special Investigation Commission had been
established, but had not yet provided its report, expressing the wish to take into account the opinion
of the Venice Commission.”
1. Did the Albanian Parliamentary Investigation Commission take into consideration the Opinion and
recommendations of the Venice Commission?
2. On expanding the scope of inquiry and prolonging the activity of the Parliamentary Investigation
Commission for alleged violations of the law (and not the Constitution!), do you consider that:
- Does it serve to the reduce or increase of the tensions?
- Does it further serve or frustrate the goals of mutual checks and balances, in a situation where
Parliament and all Municipalities are dominated by one party?36
36 Ref para 93 of the Opinion.
39
3. Does the expansion of the scope of investigation and prolongation of the activity of the
Parliamentary Investigation Commission37 exceed the constitutional investigative power of
Parliament?
4. In Opinion No. 959 / 2019 CDL-AD (2019)019, the Venice Commission notes that:
“80. While the composition of a constitutional court is always of keen interest for political actors,
having in mind such a specific case when the judges are chosen is not an ideal background for
ensuring their independence...”
4.1 In cases where Government and Parliament are one, and the President is the only institutional
actor outside government's tutorial: Does the expansion of the scope for alleged violation of the Law
(and not the Constitution!) increase the imminent risk for political appointment of the members of
Constitutional Court and of Supreme Court from only one party, i.e. from only one political actor?
4.2 Does this approach exceed parliamentary constitutional powers related to nomination of the
judges of the Constitutional Court?
4.3 Does the illegal expansion of the scope of Parliamentary Investigation Commission place the
President under political pressure to nominate to the Constitutional Court the candidates politically
preferred by the ruling party?
4.4 Does it risk to jeopardize the legitimacy of the Constitutional Court?
4.5 Does the use of the Investigation Commission and of other actions38 of the mono-party
Parliament risk to establish a precedent for improper political pressure by the ruling party even on the
Supreme Court for the nomination of its 3 members of the Constitutional Court?
II. CONSTITUTIONAL COURT
The Constitutional Court stands at the top of Judicial Institutions in Albania.
In its interim Opinion No 824/2015 CDL-AD (2015)045, para 23 and 24, and the Final Opinion No.
824/2015 CDL-AD (2016)009, para 36, 37, 39, on the Revised Draft-Constitutional Amendments on
the Judiciary, The Venice Commission warned of dangers when:
37 According constitutional principles and Constitutional Court jurisprudence in the Rep of Albania,
Decisions no 20/2007, 18/2003, 30/2014, 38/2015. 38 Resolution of the Assembly on 15.11.2019, through which all public institutions were called upon to reject
the nomination of the President of the Republic to the Constitutional Court.
40
1. The Constitutional Court is established from the beginning;
2. The Majority has a qualified majority;
3. The President and Parliament belong to the same political force.
The Venice Commission demanded that clear rules be established for the gradual transition of
the Members of the Constitutional Court, including the explicit designation of appointing
institutions and modus operandi (constitutional sequence of appointment) so that the Court
would not be politically captured by the ruling party.
1. In cases where parliament is de facto composed entirely by one political force, thus holds a
qualified majority of 2/3 of Parliamentary votes, does election of the Constitutional Court members
by only one party constitute a risk for political appointment of this Court?39
2. Is the election of members of the Constitutional Court only by one political actor compatible with
the European Constitutional practice and with Venice Commission recommendations in its opinion
on Albania and Montenegro?
3. Does the establishment of the Constitutional Court only by one political force, thus by a single
political actor, constitute a violation of Article 6 of the ECHR, as a Court established in violation
of the Constitution and the Law?
4. Is the violation of modus operandi (constitutional sequence of appointments) while just
commencing the implementation of constitutional and legal provisions, and while the
Constitutional Court is established from the beginning, in line with European constitutional
practice and does it risk setting a dangerous precedent for the future?
5. Is Parliament legitimized to interfere in the appointment procedure of Constitutional Court
members designated to the President or the Supreme Court?
6. Can Parliament intervene in the relationship between the Justice Appointments Council (JAC) and
other appointing bodies – i.e. the President or the Supreme Court, in circumstances where the
constitutional power of Parliament is limited to electing only 3 of the 9 members of the
Constitutional Court?
III. ON THE ACTIVITIES OF THE PRESIDENT OF THE REPUBLIC
1. When the Constitutional Court is established from the beginning, when parliamentary majority and
the President do not belong to the same political party, and when the mono-party parliament seeks
to hijack President’s constitutional power for appointing Constitutional Court judges, does the
political majority risk to appoint more than 1/3 of the Constitutional Court members?
39 Ref to Opinion CDL (2016) 002, of Venice Commission.
41
2. Does the violation of modus operandi (constitutional sequence of appointment) constitute a
violation of the letter of the Constitution, of its spirit, as well as of the standard for a balanced
composition of the Constitutional Court?
3. Between the constitutional40 provision to implement the modus operandi (constitutional sequence
of appointment) and the legal provision41 to respecting the 30-day deadline; which provision
prevails according the principle of hierarchy of norms according to the Constitution of the Republic
of Albania?
4. Does violation of the modus operandi (constitutional sequence of appointment) constitute
interference in the discretion space of the other appointing body?
5. According to European Constitutional practice, is it acceptable that misinterpretation of the
unblocking mechanism deprives the President of his constitutional power to appoint a member of
the Constitutional Court, notwithstanding he has continuously expressed and documented his
willingness to exercise this power?
6. Does the distortion of the unblocking mechanism risk to establish a dangerous precedent by
practically turning it into mechanism to hijack constitutional powers?
7. Does the failure to propose the minimum number of 3 different candidates for each vacancy by
JAC, bring about a "forced" or a "predetermined appointment"?
8. Does this situation pose a high risk to annihilating the power to elect/choose in substance?
IV. ON THE ACTIVITY OF THE ALBANIAN PARLIAMENT
Venice Commission Opinion No CDL-AD (2016) 009, page 9, quotes: “In the European
constitutional experience, the election by parliament of constitutional judges is often supported by
the requirement of a qualified majority in view of ensuring a choice shared by a pluralistic support
of political parties, and not by the majority only”.
In view of this assessment:
1. Does the election of the Constitutional Court members by a mono-party parliament contradict the
spirit of Constitutional amendments, the above recommendation of the Venice Commission and
the ultimately question the impartiality of the Court members?
40 Article 179, point 2 and 12 of Constitution. 41 Article 7/b, point 4 of Law no. 8577/2000.
42
2. When government, Parliament, all Municipalities, Municipal Councils and almost all independent
institutions are in the hands of one party: does capture or paralysis of the Constitutional Court serve
to the political interest of this force to be free of independent control mechanisms, such as the
Constitutional Court?
3. When this mono-party parliament further seeks to appoint more than 1/3 of the members of the
Constitutional Court by hijacking the appointment of the President, does Parliament exceed its
constitutional power and establish dominance in the composition of the Court with candidates
enjoying the support of only one political force?
4. Do Parliament’s refusal to cooperate with the President of the Republic42, its voting in 11
November 2019 Plenary, and adoption of 15 December 2019 Resolution, evidence violation of the
principle of constitutional loyalty with the purpose of capturing the Constitutional Court?
5. The legal initiative of Parliament, on 6 December 201943, anticipating an amendment to the
procedure of swearing in office to the President of the Republic, including introduction of the
retroactive effect to remove the mandate of President’s appointed judge in the Constitutional Court,
does it evidence that the mono-party Parliament is determined to capture the Constitutional Court
at all costs?
6. Does Parliament’s activity to place itself in a position of supremacy towards the President (the
Investigation Commission) and towards the Constitutional Court (Resolution 15.11.2019), along
with its legal initiative on 6.12.2019, violate the principle of separation and balance of powers?
V. ON PARLIAMENT’S APPOINTMENTS IN THE CONSTITUTIONAL COURT
1. In the light of the European Constitutional practice, does the voting of a member of the
Constitutional Court from a list with only one candidate44 legitimize the principle of "election"?
2. Why did the Constitution authors and the Venice Commission (2015-2016) envisage the necessity
of at least 3 candidates for each vacancy? What risks were meant to be avoided? Is this risk eminent
today? What do you recommend in such cases?
42 The President of the Republic on 15.10.2019, 5.11.2019, 7.11.2019 and 11.11.2019 has officially
(documented) asked Assembly’s cooperation to appoint the members of the Constitutional Court according to
constitutional sequence. 43 “On some addenda and amendments to Law No 8577, dt 10.02.2000 "On the organization and functioning
of the Constitutional Court", as amended. 44 http://www.parlament.al/Files/Procesverbale/20191115120928Proc.%20dt.11.11.2019.pdf page 34-35.