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