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.
1
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. 2
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
3
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. 4
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.
5
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. 6
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.
7
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/
8
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.
4 Ulsi Manja public statement, 5 March 2018 in: http://www.gsh.al/2018/03/05/ulsi-manja-per-anetaret-e-ked-ti-nenshtrohen-vetting-ut-para-se/ http://tv1-channel.tv/2018/03/05/ulsi-manjaanetaret-e-ked-duhet-ti-nenshtrohen-vettingut/ https://sot.com.al/politike/ulsi-manja-p%C3%ABr-an%C3%ABtar%C3%ABt-e-ked-nuk-ka-mbledhje-pa- 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 members: https://www.tpz.al/2019/11/09/video-ulsi-manja-nuk-pyet-per-mendimin-e-eksperteve-si-po- mbahet-peng-ked-del-dhe-kunder-fatmir-xhafajt/ 9
The Socialist Majority blocked the functioning of the Justice Appointments Council to avoid the completion of the vacancies.
If JAC were operational during 2017 and 2018, the vacancies with the Constitutional Court would have been completed one by one, according to the moment when they appeared.
If the Constitutional Court were functional, it would have examined 23 contested laws, adopted by the Assembly, found in flagrant violation of the Constitution and seriously infringing the public interest.
On 7 December 2018, the Assembly again organized the lot and elected the Provisional Justice Appointments Council to function during 2019.
During this period, the number of the Supreme Court members was drastically reduced and during the lot, only 3 Supreme Court Judges participated. Mr. Ardian Dvorani was elected as member of JAC and Mr. Medi Bici as substitute member.
According to Law, the member of JAC elected by the Supreme Court is also the Chair of JAC. The majority, this time, did not contest the names of JAC members because they succeeded to elect Mr. Ardian Dvorani as the JAC Chair. Mr. Dvorani is a Judge well-known for his political sponsorship and support from the Socialist majority.
The Justice Appointments Council functioned during 2019 with a limited number of members. JAC started to operate with only 7 members, out of 9 required by the Constitution and ended its work with 5 members. 3 Judges (members of JAC) were subject to vetting while performing their JAC duties, and one of them was dismissed.
Out of 3 JAC substitute members, two were also subject to vetting during the exercise of their duty, and one of them was dismissed.
The Albanian Assembly did not undertake any initiative to establish a legal basis that would allow to fill in vacancies created in JAC, although the President of the Republic had asked the Assembly to do so since July 2018.
Surprisingly the Socialist Majority this time did not contest the fact that the third JAC (2019) started to function, notwithstanding 3 out of 7 members were un-vetted Judges (contradicting their previous approach to JAC 2017-2018).
The Chair of JAC, Ardian Dvorani, was elected as a Judge of the Supreme Court in February 2004, when the Assembly was dominated by the Socialist Party.
10
He continues to serve as a Judge in the Supreme Court for 16 years, notwithstanding Constitutional deadline for a 9-year term.
During 2012, while a Supreme Court Judge, Dvorani participated in roundtables organized by the Socialist Party, at that time in opposition, contributing to drafting the political program this political force. This fact was reported by the media7, but at the time the rules on disciplinary accountability of High Court Judges were not yet endorsed.
During 2016, the Assembly was examining the constitutional amendments in the context of the justice system reform. Meanwhile, the Constitutional Court abrogated paragraph 3 of Article 5 of Law No 8588, dated 15.03.2000 “On the Organization and Functioning of the Supreme Court of the Republic of Albania”, as amended, which allowed a Judge of the Supreme Court to remain in the office after the termination of her/his term, until she/he will be substituted8.
Abrogation of this Article by the Constitutional Court had immediate effect to termination of Ardian Dvorani term as a Supreme Court Judge.
However, Government blocked the publication of the Constitutional Court's decision in the Official Gazette and until the constitutional amendments of the Justice Reform9 came into force. These constitutional amendments included a provision according to which, Supreme Court Judges shall stay in office past their 9-year term until they are substituted.
This new constitutional provision is valid only for the new appointments to the Supreme Court, i.e. for the newly appointed members under the new constitutional regime. But despite of this clear constitutional regulation and of the Constitutional Court ruling, the Supreme Court judge Ardian Dvorani claimed that the new constitutional provision had an effect on his mandate.
By delaying publication in the Official Gazette of the Constitutional Court ruling, Ardian Dvorani returned to office and continued serving as Supreme Court Judge, then elected as a member/Chair of the Justice Appointments Council 2019.
7 See links: http://top-channel.tv/2011/10/30/tryeza-e-drejtesise-pd-propagande/ http://www.panorama.com.al/tryeza-e-ps-pd-vizioni-i-rames-i-mbrapshte/ 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. 11
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.
12
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).
13
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 members, in the following links: http://president.al/en/spoti-pare-ne-mbrojtje-te-kushtetutes-dhe-integritetit-te-gjykates-kushtetuese/ http://president.al/en/spoti-dyte-ne-mbrojtje-te-kushtetutes-dhe-integritetit-te-gjykates-kushtetuese/
10 See Criminal Charges by the President of the Republic attached. https://president.al/presidenti-meta-kallezon-penalisht-kryetarin-e-keshillit-te-emerimeve-ne-drejtesi-z- ardian-dvorani/ 14
The Ombudsman, following its role as a Permanent Observer, has drafted a Report with the preliminary findings on the activity of JAC 2019, noting the abovementioned issues and others related to the malfunctioning of the JAC Chair and the JAC itself. This report is already public11.
IV. Announcing the vacancies in the Constitutional Court
The Constitutional Court was emptied, due to the non-functioning of 2017-2018 of the JAC. The only Judge of the Constitutional Court in office, is Mrs. Vitore Tusha. Her mandate has expired since March 2017, but according to Article 125/3 of the Constitution, she has chosen to remain in office until her replacement. Her vacancy must be fulfilled by the High Court.
January 2019 found the Constitutional Court with 9 vacancies, which had already been published by the appointing bodies (President, Assembly, Supreme Court) and inherited from 2018 Justice Appointments Council.
More than 48 candidates applied for these vacancies, with a significant number applying for several vacancies simultaneously.
According to JAC report for the three vacancies belonging to the Supreme Court, even after reopening of application procedures on 19.04.2019, due to the lack of candidates, it was not possible to secure a list with at least 3 candidates for these three vacancies.
In this way, JAC examined the files for completing only 6 vacancies in the Constitutional Court, which belonged, 3 to the President of the Republic and 3 to the Assembly of Albania.
Within 2019, JAC was able to complete the verification, assessment and ranking of candidates for only 4 full-time vacancies, with 37 potential candidates.
Two vacancies were created by the termination of the mandate of two former Judges Sokol Berberi and Vladimir Kristo, whose term of office ended in 2016, with one vacancy belonging to the President for the completion and one to the Assembly. Meanwhile, two other vacancies were created due to the end of term of two former Judges, Altina Xhoxhaj and Bashkim Dedja, in May 2019, which again belonged one to the President, and one to the Assembly.
JAC could not conclude the examination of candidacies for the other early vacancies belonging to the President and the Assembly.
11 https://www.avokatipopullit.gov.al/sq/articles-layout-1/media/news/this-article-is-available-only-in- albanian-238/ 15
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 JAC. 16
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.
17
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.
18
The ranking of candidates for each vacancy approved by JAC:
PRESIDENT ASSEMBLY PRESIDENT ASSEMBLY Vacancy published Vacancy Vacancy published for Vacancy published for application published for application for application application 07 February 2018 12 February 4 March 2019 4 March 2019 2018
CANDIDATES CANDIDATES CANDIDATES CANDIDATES RANKED BY JAC RANKED BY RANKED BY JAC RANKED BY JAC JAC
1. Arta Vorpsi 1. Arta Vorpsi 1. Arta Vorpsi 1. Arta Vorpsi 2. Elsa Toska 2. Elsa Toska 2. Fiona Papajorgj 2. Fiona Papajorgji 3. Besnik Muçi 3. Besnik Muçi 3. Elsa Toska 3. Elsa Toska 4. Regleta Panajoti 4. Marsida Xhaferllari
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. 19
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. 20
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.
21
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- gjykates-kushtetuese/ 19 https://president.al/en/?s=besnik+muci+betohet 22
Court), but also by JAC Chair in the final stage of the process pertaining to the administrative action of submitting the lists. This is due to the simple reason that the right of each appointing institution needs indeed be exhausted within a 30-day period, however, this right can be exercised only if there is no constitutional barrier to apply it.
With regard to the time of the submission of the lists by JAC Chair, the Assembly could choose (as it did) to vote for the election of the second member of the Constitutional Court on 13 November 2019, which is the (30-day) deadline that Article 125, paragraph 2 of the Constitution defines as the constitutional term.
Since the 30-day deadline for the President of the Republic is stipulated only by Article 7/b, paragraph 4 of Law no. 8577/2000, abiding to the constitutional provision on the sequence of appointment determined by the Constitution takes priority, as exhaustively clarified also by the law itself.
The Assembly did not display any sign of cooperation, but continued until the final stage with its anticipated scenario to express itself on the last deadline and placing the President under the conditions of constitutional impossibility of appointing his member of the Constitutional Court, according to the provision of the constitutional sequence.
Under these circumstances, the President examined the situation and concluded that reviewing the merits of the proposals of the Justice Appointments Council for the other vacancy to be filled by the President could not be accomplished at that time, as, under Article 179, paragraphs 2 and 12 of the Constitution, as well as Article 7, paragraph 2 and Article 86, paragraph 4/a/c of Law no. 8577/2000, there was a situation of constitutional barrier because it was the turn of the Assembly of the Albania to express itself for electing the second member of the Constitutional Court.
If the President of the Republic were to act on the proposal of JAC Chairman (and not of JAC collegial body) by appointing two judges simultaneously, he would directly violate two provisions of the Constitution and some provisions of the Law on Constitutional Court. This act would then legitimize the socialist majority accusing the President of violating the Constitution.
At the same time, if the President had immediately elected two judges of the Constitutional Court soon after administering the lists of JAC Chair, he would have substantially infringed Assembly’s right to “elect”, as the lists of candidates for the Assembly would be reduced under the minimum number of candidates provided for by the Constitution.
JAC Chairman, according to the scenario anticipated by the socialist majority to impose on the President its predetermined candidates, deliberately failed to comply with these constitutional
23 provisions, and established the procedural set-up by submitting the lists to both Institutions at different times merging the vacancies out of their sequence.
To the effect of preserving the constitutionality of the process and of exercising its constitutional right to appoint a constitutional judge, the President of the Republic, pursuant to Articles 4, 92, 179, paragraphs 2, 12 of the Constitution, Article 7 paragraphs 2, 7/b and Article 86 paragraph 4 of Law no. 8577 dated 10.02.2000 “On the organization and functioning of the Constitutional Court of the Republic of Albania”, Articles 66 and 44/2, letter “c” of Law no. 44/2015 “Code of Administrative Procedures”, with its Administrative Act Prot. no. 3535/1 dated 05.11.201920, decided to:
Suspend the administrative process of reviewing the list and the documentation practice for filling the vacancy in the Constitutional Court, full term vacancy, published by the President of the Republic with Decree Prot. no.11133, dated 04.03.2019, submitted to JAC with the document Prot. No. 553 dated 08.10.2019, until the election of the second member of the Constitutional Court by the Assembly of Albania or until the expiry of the constitutional deadline, within which the Assembly of Albania shall express itself for the election of the members of the Constitutional Court for filling the two vacancies pertaining to it as an appointing body, and based on the calculations, this deadline expires on the 13th of November 2019; request that the Justice Appointment Council complete only the documentary practice and submit within 5 (five) days a copy of the documentation administered and reviewed by JAC containing the application file of each of the 4 (four) eligible candidates listed by JAC to fill the vacancy published by the President with the Decree no.11133 dated 04.03.2019, for the purpose of continuing the review; request that the Assembly of Albania cooperate to consider the possibility of including for deliberation in the plenary session, as soon as possible, the election of the second member of the Constitutional Court, so that the President of the Republic shall exercise his power according to the sequence provided for by the Constitution and Law no. 8577/2000.
This decision was immediately forwarded to the Chairman of the Assembly, to the Ombudsman and to the Justice Appointments Council.
In the suspension act, the President of the Republic has clearly stated that in the capacity of the appointing body, the President has full the willingness and will express himself to appoint the next member of the Constitutional Court from the list of candidacies submitted by JAC. The public and formal expression of the President’s willingness to appoint the constitutional judge with a decree and the administrative act Prot. No. 3535/1 dated 05.11.2019, both consist in acts indicating that the anti- blocking mechanism in this case, set out in Article 7/b, paragraph 4 of Law no. 8577/2000, is not applicable. Both the spirit and the letter of the law make it clear that this mechanism can be applied only in cases when the appointing body does not express itself, thus, chooses to remain silent.
20 For more information, see the administrative act of the President of the Republic Prot. No. 3535/1 dated 05.11.2019. 24
X. JAC’s meeting on the 7th of November 2019 about the decision of the President of the Republic for the temporary administrative suspension of the examination of the list and for the submission of complementary acts by JAC.
JAC Chairman after having been informed of the act, on the date 06 November 2019 announced that JAC convene in a meeting on the date 07 November 2019, with the item on the agenda “Discussion on the positions of the President of the Republic, in relation to the process of filling the vacancies in the Constitutional Court”.
The representative of the President of the Republic, the Ombudsman and the representative of the Speaker of the Albanian Assembly were present in this meeting, in addition to JAC members. The members of the Council present at the meeting agreed that they could not comment on the content of the letter of the President, reasoning that they had no authority to discuss the President’s decision.
JAC members also agreed that the first interpreter of a constitutional power is the constitutional body itself and every constitutional body makes an interpretation of the law or its power in a way or in accordance with its own will without involving the other bodies.
JAC members also noted during the meeting that JAC has completed the evaluation, scoring and ranking of candidates for each vacancy since 21st of September 2019, and that the submission of the lists to the appointing bodies is the administrative activity of JAC Chairman and does not require a decision taken by JAC.
The Ombudsman present at the meeting asked JAC Chairman of the reason why the lists were submitted to the appointing bodies President-Assembly (two by two and with a 6- day difference from each other), however, JAC Chairman did not answer. The Council, during its meeting of 7 November 2019, decided only to submit the additional documentation requested by the President.
The Justice Appointments Council, during the meeting of the 7th of November 2019, did not discuss or take any decision on any other matter.
At this meeting, the representative of the President of the Republic once again informed the members of JAC and the representatives of the Assembly, that the President has the willingness and will express himself on the appointment of the member of the Constitutional Court to be filled by the President of the Republic, without delay, once the Assembly expresses itself for the appointment of the member of the Constitutional Court to fill the second vacancy in the Constitutional Court21.
21 See the summary of transcript of JAC meeting of the date 7.11.2019- http://www.gjykataelarte.gov.al/web/Procesverbale_te_mbledhjeve_5601_1.php. 25
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. 26
Law No 78/2014 “On the organization and functioning of the Official Publication Center” and Law No 115/2016 “On the Governance Bodies of the Justice System”, as amended, do not classify this decision under those acts that can be published in the Official Gazette. Further, JAC did not take any decision about the publication of the list for the vacancy published by the President of the Republic in the Official Gazette.
The submission of this act to be published in the Official Gazette, by the Chair of JAC, Ardian Dvorani, aimed at giving the fake impression that JAC had discussed this issue during its meeting on the 7th of November 2019 and had decided to publish its Decision no. 132, dated 21 September 2019, in the Official Gazette to the effect of the anti-blocking mechanism as provided by the Law. This was another set-up by Ardian Dvorani. Neither did JAC in its meeting of 7th of November 2019 nor in any other meeting take any decision of this nature or discuss the matter.
The President of the Republic, considering this act of the JAC Chair as an overt and intentional violation of the Law, filed a Criminal Lawsuit against Mr. Ardian Dvorani, Head of JAC on 19 November 2019, currently under investigation by the Special Anticorruption Structure (SPAK)24.
The publication in the Official Gazette by the Chair of JAC Dvorani in complicity with the Albanian Government was premeditated and jointly organized. This act would then be used by the Assembly at its plenary on 11 November 2019 to appoint a priori the predetermined candidate, Mrs. Arta Vorpsi (also intentionally ranked first on all four lists) as a judge of the Constitutional Court, taking into consideration that the 30-day legal deadline of the President to express himself had expired.
The Administrative Act of the President of the Republic Prot. No 3535/1 dated 05.11.2019, was not challenged before any Court by any of the parties involved in the process or by any of the stakeholders.
XIII. The Constitutional violations of the Albanian Assembly in the process of selecting two members of the Constitutional Court.
The Assembly of Albania convened in a plenary session on the date 11 November 2019 at 10:00 hrs. In accordance with the adopted agenda of the plenary session, the two draft resolutions were also included for the election of the two members of the Constitutional Court, for the vacancies published by the Assembly.
24See attached the criminal lawsuit submitted to SPAK Prosecution. https://president.al/presidenti-meta-kallezon-penalisht-kryetarin-e-keshillit-te-emerimeve-ne-drejtesi-z- ardian-dvorani/ 27
The list of Candidates that the Assembly had at its disposal to elect
ASSEMBLY ASSEMBLY Vacancy published for application Vacancy published for application February 12, 2018 March 4, 2019 RANKING RANKING 1. Arta Vorpsi 1. Arta Vorpsi 2. Elsa Toska 2. Fiona Papajorgji 3. Besnik Muçi 3. Elsa Toska (Mr. Muçi had lost his eligibility as a candidate because he was elected judge of the CC, by the President, since October 15, 2019)
When the Assembly was heading towards voting two members of the Constitutional Court simultaneously, in violation on provisions of the Constitution and Law No 8577/2000, the President of the Republic once more, pursuant to Article 92, letter “a” of the Constitution, addressed a public message to the members of the parliament one hour before the plenary session, requesting once more that the members of the parliament cooperate to uphold and preserve the constitutionality of the whole process. The President's message to the Assembly was as follows25: “Dear Members of the Parliament, Today is a very important day to show responsibility for Albania’s European future! You know that the establishment of the Constitutional Court is one of the nine main conditions of Bundestag for the opening accession negotiations with the European Union. The Constitution has clearly defined the sequence of the appointments for the members of the Constitutional Court! The President of the Republic elected immediately its first member! It is now the turn of the Assembly to elect the second member, nevertheless with delay! The President is following closely this process and shall express himself immediately within 24 hours to elect the third member, once the Assembly has expressed its will.
Thus, please, take five minutes to read Article 179, paragraphs 2 and 12 of the Constitution and Article 86, paragraph 4/a/c of Law on the Constitutional Court, and act without wasting any time!
25 https://www.facebook.com/ilirmetazyrtar/posts/2601856493193941 https://www.rtsh.al/lajme/presidenti-meta-u-ben-thirrje-deputeteve-te-zgjedhin-anetarin-e-dyte-te-gjykates- kushtetuese/ https://ata.gov.al/2019/11/11/zgjedhja-e-anetarit-te-kushtetueses-meta-thirrje-deputeteve-dite-teper-e- rendesishme/ https://360grade.al/308490/presidenti-meta-thirrje-deputeteve-po-e-ndjek-me-vemendje-lexoni-keto-nene- dhe-veproni-pa-humbur-kohe-sa-per-marifetet-e/ https://politiko.al/perplasja-per-anetaret-e-kushtueses-meta-thirrje-deputeteve-para-seances-gjeni-5-minuta- kohe-lexoni-ligjin/ 28
The tricks of those blind political supporters in the justice system and the illegal publications in the Official Gazette, will be unveiled to you and the public a little later, along with the non- transcribed meetings of JAC!!!”
The Assembly showed once more no will for cooperation with the President. On the contrary, members of the Albanian Parliament articulated in their discussions that the first-listed candidate on both lists of the Assembly and of the President, was considered as elected a priori and that the anti- blocking mechanism had worked. With this argument, the Assembly of Albania, during the plenary session, unjustly excluded Ms. Arta Vorpsi from the voting process of the candidate for member of the Constitutional Court.
Her exclusion from the voting process, without any decision of the Assembly, constitutes a serious violation of this candidate’s fundamental human rights and freedoms, as she was unjustly denied by the Chair of JAC and the Assembly to participate in a race she was eligible to, pursuant to the Constitution. The Assembly of Albania, contrary to any Constitutional norm, and by exceeding its powers, considered Ms. Arta Vorpsi a priori elected for the vacancy pertaining to the President of the Republic, although the Assembly in its practice had administered and was familiar with the Administrative Act Prot. No 3535/1dated 05.11.2019 of the President on the suspension of the process.
This action of the Assembly constitutes a violation of the Constitution, aiming at hijacking a member of the Constitutional Court designated for appointment to the President of the Republic.
The Assembly, in the Plenary Session of 11 November 2019, continued the voting process with only one candidate. With the Decision No. 133 dated 11.11.2019, Ms. Elsa Toska was elected a member of the Constitutional Court, as the only remaining candidate in the competition for the vacancy published by the Assembly on 12.02.2018. This appointment is carried out in violation of Article 125 of the Constitution, which determines that the members of the Constitutional Court are selected from among the candidates listed in the first three places on the list. Whereas, the appointment of a single candidate does not imply any selection process in terms of constitutional requirements.
Following this, the Assembly of Albania immediately continued with the voting process for the other vacancy, and in its consideration, there was again only one candidate left. On the basis of its deliberation, the Assembly considered Ms. Arta Vorpsi as elected, meanwhile Ms. Elsa Toska, elected in its first vacancy, lost her candidate status. Therefore, with the Decision No. 134, dated 11.11.2019 the Assembly elected Ms. Fiona Papajorgji as member of the Constitutional Court to fill the vacancy published by the Assembly on 04.03.2019, as the only candidate remaining in the competition.
Therefore:
29
The Assembly of Albania voted simultaneously in the plenary session two members of the Constitutional Court for the two vacancies, in contradiction with the defined order breaching the provisions of Article 179 paragraph 2, 12 of the Constitution and Articles 7 and 86 paragraph 4/a/c of Law No 8577/2000; The Assembly of Albania, with its a priori assessments on the number and status of candidates in the administered lists, posed a problem since it unjustly denied the candidate Arta Vorpsi of the right to be voted, to compete freely and to be elected; The Assembly elected the members of the Constitutional Court under the conditions, where for each of the vacancy, in its consideration there was only one valid candidate for selection, in contravention with Article 125 of the Constitution and Law No 8577/2000; The Assembly has also impaired the possibility of the President of the Republic to elect, by reducing the number of candidates as stipulated by the Constitution, from 3 to 2 candidates, with the simultaneous voting of the two candidates and their election as judge of the Constitutional Court; The Assembly, by means of its action, lost the chance to help the Constitutional Court maintain its integrity, even though the President of the Republic repeatedly called on it; The Assembly once again did not show any sign of cooperation towards the Institution and the request of the President, even though it was requested in writing and through public messages of the President, under the conditions when this cooperation was important, since the candidates on the lists of both institutions comprised almost the same names; The Assembly’s a priori assessment, that the 30-day legal deadline of the President to select a candidate had expired, was not based on the Constitution. The Constitution, unlike for the Assembly, does not foresee any binding deadline for the President of the Republic to express himself.
XIV. The appointment of the other Judge by the President of the Republic for the vacancy published by him on the 4th of March 2019.
After the Assembly expressed itself on 11.11.2019, by appointing two constitutional judges, the President ascertained that the condition of suspension did not exist any longer, and therefore continued with the examination of the practice to express himself on the appointment of the Constitutional Judge, a vacancy published by the President on 04.03.2019.
Following the election of Ms. Elsa Toska and Ms. Fiona Papajorgji as Judges of the Constitutional Court by the Assembly in contradiction with the sequence determined by the Constitution, with regard to the vacancy pertaining to the President, only 2 (two) candidates remained in the competition to fill the vacancy, respectively Arta Vorpsi and Marsida Xhaferllari.
The President of the Republic, with the Decree No. 11350 dated 13.11.2019, appointed Mrs. Marsida Xhaferllari as Judge of the Constitutional Court. This Decree is accompanied with the reasoning26 for the selection of this candidate and the procedure followed to fill this vacancy. These acts were
26See Decree No. 11350 dated 13.11.2019 of the President of the Republic and his reasoning. 30 published on the official website of the Institution of the President of the Republic27 and through the public information media.
The selection of this candidate was to the effect and complying with the Constitutional provision of Article 125, paragraph 1 and the provision of Article 149/d, paragraph 1 of the Constitution28. The last sentence of this paragraph foresees that “The ranking of candidates is not binding, except for the case when the candidate is not appointed.” This means that the list, in terms of the three names that it must have, is not necessarily rigid. It can be completed with the subsequent candidates in those cases when one or more candidates from the upper 3 levels are no longer candidates for various reasons.
If otherwise, the Constitution would not have this provision, and could even assert that the list is a closed one and that the appointment/election should only be made from the 3 candidates in the list during the initial phase; or it could foresee that the decision-making authority (the appointing body) should be provided with the names of the first three candidates, while the other candidates are not submitted to the decision-making authority.
Article 125, paragraph 1 of the Constitution provides that the list submitted by JAC may contain the names of more than 3 candidates, but the appointment/election may be carried out only among the 3 candidates listed on the top. The list is “rigid” only in one case, if the designated authority decides to remain silent within the 30-day deadline. Even in this case, the “rigidity” of the list refers only to the candidate ranked first by JAC. Therefore, the decision-making authority will have no right to hierarchically rearrange the first 3 candidates, as this would undermine the anti-blocking mechanism set out in the Constitution (the first ranked is considered as appointed in the event of silence).
With reference to the above provisions, it must be noted that the President of the Republic encountered this situation caused by JAC and followed by the decision-making of the Assembly on 11.11.2019, where there were only 2 (two) candidates, and one of them was to be appointed judge of the Constitutional Court.
While assessing objectively the whole situation created as a result of the actions of the other bodies (JAC Chair-Assembly), which undermined the sequence of appointment of the Constitutional Judges, the President of the Republic finally decided to proceed with these number of candidates for the election of the Constitutional Judge for the vacancy published by him, since there was the possibility to elect a suitable candidate as member of the Constitutional Court. Even though the Constitution and the Law requires minimum 3 candidacies, the President of the Republic considered that in this case,
27 See : https://president.al/presidenti-meta-dekreton-emerimin-e-znj-marsida-xhaferllari-gjyqtare-te-gjykates- kushtetuese-2/ 28 Article 149/d paragraph 1 of the Constitution: “The Justice Appointments Council is responsible for verifying the fulfillment of legal requirements and assessment of professional and moral criteria of the candidates for the High Justice Inspector, as well as for the members of the Constitutional Court. The Justice Appointments Council examines and ranks the candidates according to their professional merits. The ranking of candidates is not binding, except when a candidate fails to be appointed.” 31
the presence of 2 (two) alternatives ensured the essence of the right to elect and that the spirit of the Constitution was preserved. As for the President of the Republic, the discretionary space of assessing between more than one candidate was ensured; otherwise it would have been an automatic appointment, thus, the right to appoint would be assumed by another body which does not have this constitutional power.
For the above reasons, he considered to act with the selection of Mrs. Marsida Xhaferllari to be a member of the Constitutional Court, who, inter alia, had shown high integrity, being the only one of the 6 candidates in the race to have applied for only 1 vacancy out of 6 (six) vacancies published for application by the appointing bodies (President, Assembly) and which were examined by JAC. With the document Prot. No. 4237 dated 13.11.2019, the Institution of the President of the Republic notified the Assembly, the Constitutional Court, the Ombudsman, the High Judicial Council, the High Prosecutorial Council and JAC on the appointment of Mrs. Marsida Xhaferllari as a member of the Constitutional Court.
XV. The new Constitutional Judges elected by the President and the Assembly swearing in as a condition prior to the commencement of exercising the mandate.
Article 129 of the Constitution foresees that the Judge of the Constitutional Court starts the duty after taking the oath in front of the President of the Republic.
On the 14th of November 2019, the President of the Republic administered the official publication and Acts of appointment by the Assembly of Ms. Elsa Toska and Fiona Papajogji as members of the Constitutional Court. Immediately following this publication, the President of the Republic, with the document Prot. No. 4312/1 dated 14.11.2019, notified the respective institutions and published through the public information media the organization of the swearing in ceremony of the new Judges of the Constitutional Court, Elsa Toska, Marsida Xhaferllari and Fiona Papajorgji29, to take the oath respectively on the date 14.11.2019, at the following times:
1. Ms. Elsa Toska, at 19:00 hrs.; 2. Ms. Marsida Xhaferllari at 19:30 hrs.; 3. Ms. Fiona Papajorgji, at 20:00 hrs.
The members of the Constitutional Court Mrs. Vitore Tusha and Mr. Besnik Muçi and the members of the Constitutional Court30, who had already taken the oath, participated in the swearing in ceremony.
29 https://president.al/njoftim-mbi-organizimin-e-ceremonise-se-betimit-te-gjyqtareve-te-rinj-te-gjykates- kushtetuese/ 30https://president.al/betohet-para-presidentit-te-republikes-anetarja-e-re-e-gjykates-kushtetuese-znj-elsa- toska/ 32
The notification of the oath taking ceremony was immediately and officially forwarded to the Assembly of Albania and to the Constitutional Court, with the document Prot. No. 4313/1 dated 14.11.2019. In this way, after having fulfilled the last condition foreseen by Article 129 of the Constitution for the commencement of the duty, the oath taking before the President of the Republic, the new members of the Constitutional Court started their duty.
Currently, 4 members of the Constitutional Court, Mrs. Vitore Tusha, Mrs. Elsa Toska, Mrs. Marsida Xhaferllari and Ms. Fiona Papajorgji, have immediately started exercising their mandate by reviewing cases in preliminary colleges (year 2019-2020) and making decisions on whether or not to adjudicate claims administered by this court31.
XVI. The behavior of the candidate Arta Vorpsi.
Following the appointment of Mrs. Marsida Xhaferllari as a member of the Constitutional Court by the President with the Decree No. 11350 dated 13.11.2019 and following the publication of his decision, the other candidate, Mrs. Arta Vorpsi, signed a personal statement before a Notary on 13.11.2019, claiming to swear in office.
This personal statement is a unilateral and unsolicited act coming from an entity/individual who was not considered to meet any of the conditions or criteria impelling that such an action take place.
Mrs. Arta Vorpsi has been considered as a candidate by the President of the Republic in the vacancy pertaining to him, but she was selected neither by him nor the Albanian Assembly, nor has she been declared by any decision as elected/appointed judge of the Constitutional Court.
This immature, unprofessional and unconstitutional act by Mrs. Arta Vorpsi confirmed once again that this candidate lacked professional skills, integrity and professional impartiality to be elected as a member of the Constitutional Court.
Article 129 of the Constitution foresees clearly that the Judge of the Constitutional Court starts the duty after taking the oath only in front of the President of the Republic.
XVII. Resolution of the Assembly of Albania immediately following the oath taking of the Constitutional Judges.
https://president.al/betohet-para-presidentit-te-republikes-anetarja-e-re-e-gjykates-kushtetuese-znj-marsida- xhaferllari/ https://president.al/betohet-para-presidentit-te-republikes-anetarja-e-re-e-gjykates-kushtetuese-znj-fiona- papajorgji/ 31 http://www.gjk.gov.al/web/Vendime_moskalimi_te_ceshtjeve_ne_seance_gjyqesore_101_1.php http://www.gjk.gov.al/web/Vendime_moskalimi_te_ceshtjeve_ne_seance_gjyqesore_101_1.php 33
As soon as the Constitutional Judges commenced their duty, the Assembly started a process of antagonizing the actions and decisions of the President of the Republic, in order to prevent the Judge appointed by the President of the Republic from exercising her duties.
On the 15th of November 2019 (the day after swearing in office), the Assembly adopted a resolution stating inter alia that: “The Albanian Assembly first calls on the Constitutional Court to assume the responsibility of the authority subject only to the Constitution, to not allow the institutional delegitimization since it commences its activity, but to implement the constitutional order of the ranking set by the decision of the Judicial Appointments Council, which defines Mrs. Arta Vorpsi as appointed Judge of the Constitutional Court.
Any other attempt or action, to the effect of implementing the Decree of the President of the Republic No. 11350 dated 13.11.2019, on the appointment of Mrs. Marsida Xhaferllari as Judge of the Constitutional Court and which is considered to be in overt and flagrant contravention with the Constitution and the law, makes anyone, who dares to take this action with serious consequences for the functioning of the rule of law, responsible.
The Assembly of Albania calls upon the Constitutional Court and upon other bodies to carry out their duties responsibly, without posing any obstacles for the commencement of the duty of the Constitutional Judges Mrs. Arta Vorpsi, Mrs. Elsa Toska and Mrs. Fiona Papajorgji appointed legitimately under the Constitutional procedure, which was followed for this purpose by the Judicial Appointments Council and the Assembly of Albania.
The Assembly of Albania, in the context of avoiding any attempt to block the Justice Reform, is committed to reviewing the legislation to avoid the arising in the future of situations, which impede abusively the functioning of the constitutional bodies of the country.”
Based on the content of this resolution, the purely political position of the Socialist majority to seize the Constitutional Court is observed and to seize from the President of the Republic the appointment of a member, from his constitutional right to choose. This resolution also proves that the majority would pursue all forms that allow by all means and conditions to impose Mrs. Arta Vorpsi, as a Judge in the Constitutional Court.
XVIII. Fulfillment of a legal obligation by the President of the Republic to Report the criminal offences committed personally by Mr. Ardian Dvorani in the position of Head of JAC, for exceeding and failing to perform duly his duties as Head of JAC.
34
Pursuant to Article 281 of the Criminal Procedure Code, the President of the Republic with the act Prot. No. 4350 dated 19.11.201932 filed a criminal report with the prosecution body with a view to initiating an investigation against Mr. Ardian Dvorani for the criminal offences of “Abuse of office”, provided for by Article 248 of the Criminal Code and “Appropriating a public title or office”, provided for by Article 246 of the Criminal Code33.
This is due to the fact that considering the entirety of all the circumstances, it is deemed that during the term of office as Chair of JAC, he has deliberately abused the public office he was assigned and undertook to carry out.
The criminal facts for which Mr. Dvorani was reported were repeated more than once and were committed with direct intent. Specifically:
The Chair of JAC, through his personal administrative actions submitted the lists to the appointing bodies (President and Assembly) two –by-two and with a time difference, which failed to comply with the time of compilation and approval of the lists, with the sequence in which they were approved, and the binding sequence provided for by the Constitution and Law for the filling of vacancies. In order to protect the entire process of appointing/electing the members of the Constitutional Court and to comply with the sequence of their appointment, the Chair of JAC, during the final stage of submitting the final lists, by all means, had to take into account and comply with the requirements of the Constitution and Law. JAC did not take any collegial decision on the manner and the time of the submission of the lists to the appointing bodies. This administrative action was carried out individually only by the Chair of JAC, who pursuant to Article 226 paragraph 2/e of Law No 115/2016, has the only function of signing the acts of verification, evaluation and ranking and submitting them to the appointing body, without interfering or changing the decision of JAC. The Chair of JAC, Mr. Ardian Dvorani, merely by drafting and signing under his name an administrative document, which was submitting two lists of candidates for two vacancies simultaneously, has made a serious violation of the Law, and provoked the President of the Republic to impose a “new rule” so that he would overtly infringe the Constitution and the sequence of appointment of the new members of the Constitutional Court. Submitting for publication in the Official Gazette of the Decision of the Justice Appointments Council No. 132 dated 21 September 2019, is another punitive act committed by the Head of JAC. Failure to transcribe and publish for one year the minutes of the meetings of the Justice Appointments Council, in contravention with Articles 226, 232 of Law No 115/2016 and paragraph 17 of the Regulation of JAC, consist another criminal fact committed by the Head of JAC, of which he has been reported by the President of the Republic.
32 For more information, see the Criminal Report submitted by the President of the Republic with the document Prot. No. 4350 dated 19.11.2019 to SPAK Prosecution. 33 https://president.al/presidenti-meta-kallezon-penalisht-kryetarin-e-keshillit-te-emerimeve-ne-drejtesi-z- ardian-dvorani/ 35
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 36
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.
37
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. 38
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. 39
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. 40
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. 41
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.
42
3. In this case, has the power of election been de facto dispossessed by a body that does not have such power, i.e. JAC45?
4. Does Parliament’s exclusion of Mrs. Arta Vorpsi from the list of candidates to be voted in its plenary of 11 November 2019, for the 2nd and 4th vacancies, constitute a violation of the Constitution?
5. How compatible is Parliament’s election of two judges in violation of constitutional procedure with the concept of a "Tribunal established by Law", as defined by Article 6 of the ECHR?
6. Do Parliament’s constitutional violations related to election of its Constitutional Court members, taken alone and/or altogether, question the guarantees of individuals for a regular legal process?
VI. ON THE ACTIVITY OF THE JUSTICE APPOINTMENTS COUNCIL (JAC)
1. Does the duration in office well beyond constitutional mandate of the High Court Judge Ardian Dvorani (16 years out of 9 as stipulated by the Constitution), and consequently his assignment as JAC Chair, infringe the principles of independence and impartiality while exercising these duties?
2. Ardian Dvorani’s biased activity, in violation of the law and of the JAC decisions constituting in: - The Constitutional violation of modus operandi (the sequence of appointments stipulated by the Constitution, and endorsed by JAC decisions on. 21.9.2019) - Publishing in the Official Gazette the list of candidates for President’s second vacancy, in violation of laws no. 115/2016, 78/2014, and of JAC collegial decision; - Official communication surpassing the scope of his mandate and in absence of a JAC decision; - Failure to publish JAC meetings’ transcripts for a whole year, in violation of law no. 115/2016 (articles 226, 232) and the decision no 1, dated 08.02.2019 of JAC.
As illustrated in two official video spots published by the Institution of the President of the Republic: - http://president.al/en/spoti-pare-ne-mbrojtje-te-kushtetutes-dhe-integritetit-te-gjykates- kushtetuese/ - http://president.al/en/spoti-dyte-ne-mbrojtje-te-kushtetutes-dhe-integritetit-te-gjykates- kushtetuese/
Did it infringe the integrity of the election process for candidates of the Constitutional Court?
Which constitutional provision foresees simultaneous appointments of Constitutional Court Judges from one designated institution?
3. All the facts related procedural violations of JAC establishment (blocking JAC functioning for 2 years; having only 7 members, and in the end only 5 out 9 required); do they affect JAC legitimacy and credibility, and consequently affect the legitimacy of its product, i.e. composition of candidates’ lists for the Constitutional Court?
45 Referring to CDL-AD (2016) 009, page 11, the participation of JAC in the pre-selection of candidates to be appointed by the President and Parliament further reduces the risk of political appointments (Article 125 of the Constitution). 43
4. The exclusion of the Ombudsman from JAC activity, in violation of the Constitution (article 179, point 11) and of the law no. 115 (article 233): does it infringe transparency of JAC activity and does it limit the constitutional powers of the Ombudsman?
5. How important is the plurality of candidates in the selection process of candidates, particularly when proceeding with several vacancies simultaneously, and when the Constitutional Court is established from the beginning?
6. If candidates for Constitutional Court are not part of the judiciary, and therefore vetted by JAC with the assistance of Government Agencies (Directorate of Classified Intelligence Information, Control Service for Internal Affairs in the Ministry of Interior, High Inspectorate of Declaration and Audit of Assets and Conflict of Interests, General Directorate for the Prevention of Money Laundering): Is there a risk of political favoritism towards candidates preferred by government?
7. Ranking the candidates who have failed the School of Magistrates test in the top of the lists, (violating law no. 84/2016, article 42, point 2, article 44, letter c, and law no. 96/2016, article 165, point 2, 3, 4, 8) does it infringe the credibility and integrity of the JAC assessment and ranking process? Consequently, does it infringe the credibility, level of professionalism and the integrity of the members of Constitutional Court, particularly when the latter is established from the beginning?
8. While the Albanian judicial system is currently examining: i. a criminal case investigated by the Special Anti-Corruption and Organized Crime Structure (SPAK) on the arbitrary activities of the JAC Chair Ardian Dvorani; and ii. an administrative case filed by the Ombudsman, opposing the by-laws approved by JAC:
What would be the effect of the Venice Commission Opinion towards the investigation and adjudication of these cases?
Honorable Mr. Buquicchio,
Given the persisting sui generis crisis in my country, and when thousands of Albanians are abandoning the country due to the non-functioning of the rule of law and violation of their fundamental freedoms, I would like to bring to your attention and to the attention of the Venice Commission that this Opinion shall have a direct impact on the course Albania is about to take, towards democracy or dictatorship!
With the assurance of the highest consideration, Sincerely,
Ilir Meta
44