4 October 2019 The letter of President Meta to the President of the Venice Commission Buquicchio, accompanied with the comments and position of the President of the Republic on the Draf-Project Opinion of the Venice Commission
REPUBLIC OF ALBANIA
No. 3493 Prot. Tirana, on 4.10.2019
Subject: Comments and views of the President of the Republic on the “Draft Opinion” No.959/2019 prepared by the expert members of the Venice Commission “On The Powers Of The President To Set The Dates Of Elections In A Parliamentary System.”
To: Mr. Gianni BUQUICCHIO
PRESIDENT OF THE VENICE COMMISSION
Cc: MEMBERS OF THE VENICE COMMISSION
Honorable Mr. Buquicchio,
Thank you for the valuable assistance that the Venice Commission has continuously provided for reforms related to consolidation of the rule of law and to the strengthening of democratic institutions in Albania.
I was acquainted with the draft opinion prepared by the experts of the Venice Commission and the clear finding that the President of the Republic did not violate the Constitution.
However, I wish to highlight some key issues that seem to have been overlooked, but of crucial importance to an objective analysis and conclusion thereof.
Information provided for and comments brought to the kind attention of all members of the Venice Commission are objective and contribute to further discussion, amendment and improvement of the draft opinion, prior to its final adoption.
First and foremost, I would like to inform you that in my capacity as President of the Republic, I have sworn to abide to the Constitution and laws of the country, to respect the rights and freedoms of citizens, to defend the independence of the Republic of Albania and to serve the general interest and progress of the Albanian People.
Under this oath, my activity is commanded by the highest national interest that serves to the country and my fellow citizens.
With the good understanding that the Venice Commission stands in an unusual position to express itself on an issue that affects both political and legal aspects stemming from unprecedented developments, I find it necessary to underline that only a deep comprehension of the situation in Albania would enable an objective assessment of the President’s constitutional activity.
This conviction was reinforced during my meeting with Venice Commission reporters in Tirana, who acknowledged lack familiarity either with history or context of events, while admittedly recognizing that this is a key element for accurate interpretation of constitutional activities of the President of the Republic.
Indeed, paragraph 7 of the draft opinion affirms that the chronology of facts is incomplete and that it does not constitute evidence of any of the mentioned events.
The assessment and interpretation of the letter of the Constitution regarding the exercise of powers and role of the President of the Republic are insufficient if not placed in light of extreme circumstances in which they have been employed.
Escalation of unprecedented crisis in Albania, yet unsolved, has been the focus of not only domestic authorities, media, and other non-state actors, but also an increasing concern of international partners and foreign media.
No President of the Republic would be able to bypass or remain unaffected by the constant risk of bloodshed undermining the stability and image of the country. No Albanian, with any memory of the cruel communist regime, would remain undisturbed by the threat of a state-party return after 29 years of fragile democracy in Albania.
Upon a detailed assessment of the draft opinion, I hereby find that:
1. The draft opinion is often contradictory, with diametrically opposing judgments on the same issue. One is under the impression that Venice Commission’s experts are apriori guided by some fixed ideas, leading to rational inconsistencies between facts and analysis vis a vis opinion’s conclusions;
2. The presentation of the facts and circumstances in the draft opinion is unbalanced and incomplete.
The experts ought to build either a theoretical opinion, referring only to the legal basis, jurisprudence and the constitutional doctrine, or a substantiated opinion, encompassing the entire matter of the case.
Lack of a complete fact-gathering process to attest the magnitude of crisis in Albania also leads to erroneous assessment of the legal situation;
3. The draft opinion draws some conclusions that go beyond the mandate of the Venice Commission as an advisory body, and for which the Commission has not been invested by the Albanian Assembly.
Measuring the scale of threat in Albania by limiting on scarce juxtaposing statements of public authorities, is unprofessional and out of Venice Commission experts’ work scope.
Experts have also in some cases overstepped their advisory powers, vesting upon themselves attributes of a judge;
4. Some assessments and conclusions by the Venice Commission experts contradict the jurisprudence of the Albanian Constitutional Court and the spirit upon which the Constitution is built, with regards to the role and powers of the Head of State;
5. The Institution of the President of the Republic has welcomed an opinion by the Venice Commission to provide a theoretical and constitutional description of the role of the President of the Republic as a moderator in serious crisis situations, such as the one present in Albania, standing as a guarantor of the constitution and the principles upheld by it, in preserving the general interest;
6. The Institution of the President of the Republic has welcomed the opinion of the Venice Commission to identify the gaps in legislation and advice to filling a possible legal vacuum;
7. Experts have exceeded the scope of their work by interfering with the competencies and assessment of the OSCE/ODHIR, the highest institution authorized to monitor and deal with electoral matters.
Experts’ analysis and conclusions do not make any reference to the findings and conclusions of the 3 (three) OSCE/ODIHR Reports. These reports were prepared by the observation mission monitoring Albania for 3 months before, during, and after the June 30 voting process, with the participation of over 200 observers.
The Venice Commission opinion and OSCE/ODIHR reports challenge each other’s findings and conclusions;
8. The draft opinion and the way it is composed runs the risk of establishing a problematic precedent to democratic social order.
If this draft is adopted as it stands, then any autocratic leader can interpret this opinion of the Venice Commission in his/her favor.
On behalf and respect of procedural aspects, any autocratic leader will be encouraged to push the oppositions out of the system, or to unable by disguised methods their participation in the elections, thus violating in principle all the essential election standards of a democratic system, always on behalf of “respecting” electoral procedures.
Albania has held periodic and completely peaceful voting during the totalitarian system, but that does not mean that they were free, fair or democratic;
9. This draft opinion ignited once more political polarization in the country, right after the parties restored a bridge of dialogue;
10. Although the Albanian Assembly has seemingly addressed to the Venice Commission 8 (eight) questions of a legal and constitutional nature, the Assembly is only interested in its political use by setting an unmerited trap for the Venice Commission.
On June 13, 2019, all members of the Inquiry Commission voted through the Assembly Resolution, for the impeachment of the President. This indicates that the Commission has commenced its activity with an anticipated conclusion.
The ruling majority immediately used the draft opinion to divert public opinion’s attention from the OSCE/ODIHR Report, the conditions set for the opening of accession negotiations with the European Union, the domestic political crisis, and the unsuccessful attempts to legitimize the illegal voting of June 30.
While the draft opinion was yet submitted to interested parties, exponents of the ruling majority and the media close to it urgently spread the news, quote: “The President violated the Constitution” and “Venice Commission impeaches the President” creating chaos and division in the public opinion, and most importantly, increasing uncertainties to resolving the ongoing serious crisis in Albania.
This draft opinion has not been addressed and is not expected to undergo a juridical assessment by the Assembly, but only a political one, as this was the initial and the only purpose of the entire process.
It is worth noting that the Assembly currently has only 122 out of 140 MPs, as stipulated by the Constitution. Fulfillment of vacant seats is impossible due to en bloc lifting of 182 MPs and candidate MPs mandates of the Parliamentary opposition parties.
Honorable President of the Venice Commission,
On all issues raised in this draft opinion, for which the President of the Republic has a different assessment, I attach herewith comments embodied to the text.
The President of the Republic, as an interested party in this process, deems further necessary to receive the Venice Commission opinion on the following questions and issues:
1. Apart from the President of the Republic, which other institution is stipulated by the Constitution with the right to set an election date?
2. Has any Court in the Republic of Albania ordered the abrogation of the Decree of the President of the Republic no 11199, dated 10.06.2019 and Decree no.11211, dated 27.06.2019? Is the Constitutional Court of the Republic of Albania the only body to review the constitutionality of the Decrees of the President of the Republic?
3. Has the Venice Commission been asked to provide an opinion on the assessment of the June 30, 2019 voting process? Does the Venice Commission have the competence to assess local elections in Albania? Does a different assessment from that of the OSCE/ODIHR on the electoral process set a conflicting precedent between international institutions? Has the Venice Commission asked for an opinion from the Congress of Local Authorities regarding their decision not to send observers to the June 30 election process in Albania, given that both institutions operate under the umbrella of the Council of Europe?
4. Does the scope of activity of the Venice Commission include assessment of the security level in the Republic of Albania? Have the reporters had access to data from specialized security agencies? Can the experts of the Venice Commission asses the gravity of facts and group-facts that the President of the Republic possesses in his capacity as the Chair of the National Security Council and Commander-in-Chief of the Armed Forces on the threat of public security and order in Albania?
5. If in a democratic social order elections are held with only one candidate and with no competing alternatives: Would it constitute a breach or violation of fundamental constitutional principles (provided for in Articles 1/3, 3, 4, 5, 15, 45/1 and 4 of the Albanian Constitution)? Would it constitute a violation of the standards of the European Convention on Human Rights and its jurisprudence in respecting Article 3, Protocol 1 thereto?
6. In light of the fact that the Constitutional Court has been out of function for 18 months: Does this amount to a constitutional crisis situation? Does it have repercussions for the respect and application of the fundamental principles of the rule of law, the separation and balance of powers, the respect for human rights and fundamental freedoms and democracy? Are there consequences for the constitutional order and respect for constitutionality? Does it provide ground for instigating institutional conflicts between constitutional bodies? Does it disable constitutional control of acts/decisions of central bodies, the executive and of the legislative power? Can the Assembly exercise the powers of constitutional control that Article 131 of the Albanian Constitution provides only for the Constitutional Court?
7. Referring to the content of the Albanian Constitution: Does the Albanian Assembly have the power to review or express with a decision in order to evaluate, or to overrule the Decrees of the President of the Republic on setting the date for local government elections? Is the Decree of setting the date for local government elections under the control of the Assembly and, if so, which provision that makes this possible? What is the binding value of the Resolutions adopted by the Albanian Assembly in setting the date of elections for local government bodies?
8. The adoption by the Assembly of June 13, 2019 Resolution on the validity of Presidential Decree no. 11199, dated 10.06.2019 and the appeal to all state institutions for the non-implementation of the decree: Is this blocking of constitutional activity and decision-making of the Head of State a constitutional violation by the Assembly? Has the Assembly violated the role of the President of the Republic as mediator and arbitrator between the parties? Does it cause damage to the institutional and constitutional balances and consequently shaking the foundations of the rule of law?
9. Under the conditions in which the Assembly has expressed its position by the Resolution of June 13, with the votes of 100 MPs, including the members of the Special Parliamentary Commission of Inquiry, is this act contrary with the principle of an orderly legal process?
10. Under the conditions where both sides maintained refractory attitudes against President’s repeated calls and appeals for dialogue, did the President have at his disposal any mechanism, other than the issuance of decrees and concurrent activity, to create an opportunity for resuming political dialogue between the parties, preserving social peace, decreasing tension, in order to resolve the crisis as well as to protecting and respecting the constitutional principles and international obligations?
Honorable Mr. Buquicchio,
Given the unprecedented situation still on-going in my country, with none of the constitutional institutions of the judiciary system guaranteeing control and balance between powers being functional, and in conditions where the severe crisis seems to approaching towards a solution thanks to the investment of highest authorities from our most important European partners, I would encourage the outmost attention from all members of the Venice Commission in assessing this issue.
The institution of the President has previously provided you with an exhaustive material of facts on the matter under consideration. This material, comments on the draft opinion and the issues raised above must be considered in an integrated manner and by all members before delivering a final opinion. The President of the Republic remains open for any further clarification should there be need of from your good offices.
Please accept the assurance of my highest consideration.
COMMENTS BY THE PRESIDENT OF THE REPUBLIC H.E. ILIR META ON THE PROJECT-OPINION BY THE EXPERTS OF THE VENICE COMMISSION:
“ON THE POWERS OF THE PRESIDENT TO SET THE DATES OF ELECTIONS IN A PARLIAMENTARY SYSTEM”
An accurate chronology of events is imperative in view of necessary impartial assessment of President’s acts driven by extraordinary circumstances.
It must be noted that registrations of 40 political parties implies an abundant plurality of choice. However, these 40 political parties claimed to be registerd for 30 June elections, are all minor coalition allies of the governing Socialist Party supporting only Socialist Mayor candidates (all supporting only 1 candidate Mayor for each of 60/60 municipalities).
The Parliamentary opposition lifted EN BLOC their 182 Parliamentary mandates, following a long boycott of Parliament, and majority’s refusal to pass a vetting law on politicians.
Contrary to provisions of Electoral Code stipulating a politically balanced composition of CEC, the latter was composed of 4 representatives of the governing Socialist Party, and one from the opposition.
There have been NO complaints filed from the MPs. It is a fact that replacement of parliamentary vacancies was made hastidly in violation of Parliamentary Rules of Procedures and stipulations of the Electoral Code.
The United opposition bloc is led by the Chair of the DP. However the bloc is not limited to DP and SMI, but includes all other opposition parties: i.e. Democratic Party (PD), Socialist Movement for Integration Party (LSI), the Republican Party (PR), the Party Unity for Human Rights (PBDNJ), the Demo-Christian Party (PDK), the Party Movement for National Development (LZHK), the Agrarian and Environmentalist Party (PAA), the Party for Justice, Integration and Unity (PDIU), Democratic Movement for Change Party (PLDN), Hour of Albania Party (POSH), New European Democracy Party (PDER), and other minor parties.
In the last parliamentary elections in June 2017, current bloc opposition political parties ensured 48.14% of the total vote, while the Socialist Party with its political allies ensured about 49.83% of the total votes.
In the last local government elections held in Albania in June 2015, current opposition bloc ensured 48.6% of the votes, while the Socialist Party with its current allies ensured a total of about 43% of the votes.
Since the very beginning of the crisis, including when by both sides rushed to such extreme decisions, the President made constant public appeal and efforts to have both sides immediately withdraw from such action, to urgently establish political dialogue and to behave within constitutional borders.
President’s statement followed official calls from largest parliamentary group in German Bundestag CDU/CSU to immediately establish political dialogue without preconditions, including on possibility to postpone 30 June elections.
It must be noted that Albania is a candidate country to the European Union, under the close scrutiny of EU Commission and its member states. While the OSCE has trusted Albania with Chairmanship-in-Office of the Organization in 2020, and is keenly observing domestic developments in view of ability to exercise a successful chairmanship.
The full context of this decision is of paramount importance. Only after an accurate chronology of facts has been duly established can an objective analysis and conclusion be drawn thereof. The particular merits of this case can be examined exclusively in the context of the gravity of facts related to domestic unprecedented extraordinary circumstances.
Serious concerns regarding pre-election period, culminating with 8 June protest and on to election day, were widely reflected in the national and international media. These concerns included public warnings from US State Department, EU member representatives, religious and business communities, etc, warning eruption of civil conflict in the country, with serious repercussions for country’s political, economic and social stability.
While confined by law to disclose further detailed information, the President publicly revealed the fact that he possessed, inter alia, official information from state security agencies alerting imminent threat to public order and security, including burning of Parliament building.
The President declared on the 8 of June his intention to cancel 30 June as date of elections, which had an immediate effect to soothing tensions during 8 June protest and thereon.
Until the 10 of June, when the new decree was published, neither Government nor Parliament made any institutional effort to communicate or assess the gravity of circumstances affecting the whole country. Instead, they immediately initiated a public attack and their determination to follow with a quick procedure of impeachment against the President of the Republic, the only remaining institution legitimating the existence of check and balance of power in the country.
CEC has no competence over assesment of President decrees. Only the Constitutional Court can adjudicate Presidential Decrees of a Constitutional nature.
This decision of the Electoral College has not enforced in its enacting clause any obligation to create legal consequences on Decree no.11199, dated 10.06.2019 and on the Institution of the President of the Republic, and consequently on the fact of the cancellation of June 30 as Election Day.
The institution of the President of the Republic has not been called by the Electoral College to be a party to the process. Pursuant to Articles 145, 155, 156, 158 of the Electoral Code and the rules of the Code of Civil Procedure, the decisions of the Electoral College shall only apply to the parties to the proceedings and only to what is decided between these parties: that is, between the CEC and the ally of the Socialist Party, Party of National Unity.
According to the Electoral Code, the Electoral College at the Tirana Court of Appeal has no competence to review the validity of the Presidential Decrees, as this right is not recognized to it by the Constitution, the Electoral Code or any other law in force in the Republic of Albania.
Contrary to the decree of 10 June 2019 and contrary to legal obligation to do so, MoJ does not publish this decree.
Without participation of the opposition bloc, and with NO alternative candidates in 31/60 municipalities.
CEC published delayed by 27 days publishing of these data, although the composition of electoral administration in central and local level was 100% in control of Socialist Party.
The explanatory report handed to the Venice Commission explains in detailed and chronological order the origins of the crisis.
Strong political polarity has prevailed during 2018-2019. The lack of political dialogue between the majority and the opposition deepened the divisions and the distrust between the parties.
The opossing positions were further deepened when the opposition parties boycotted Parliament during September-December 2018 and warned lifting of their parliamentary mandates when the majority voted down in the Assembly their initiative on constitutional amendments regarding the vetting process of the political class.
The opposition had earlier raised concerns about restrictions of its supervising role in Parliament, including the right to start investigation commissions and to call the members of government cabinet for reporting before the Assembly.
The government claimed that it had provided the opposition with enough time to talk in the Assembly, and according to them the opposition had tried to use the Parliament in order to block government reforms.
The opposition has also denounced the abuse in the lawmaking activities of the socialist majority in the Assembly, which approved corruptive concessionary contracts by issuing special unconstitutional laws.
These and other allegations of the unconstitutional activities by the ruling majority remained only in the form of public denunciations. The cases submitted to the Constitutional Court regarding the constitutionality of the acts and actions of the government could not be adjudicated due to the non-functioning of the Constitutional Court.
The government, on its part, accused the opposition of protecting the corrupt judges and that they feared the deep reform in justice.
At the beginning of December 2018, the whole country was involved in massive protests by university students against the government, which forced the Prime Minister to recompose almost his entire cabinet at the beginning of January 2019.
Other protests by the small and medium-sized businesses, farmers, doctors, artists, etc., continued to spread in various cities of Albania, culminating in the violent protest over the fee imposed on the “Nation’s Road” (Rruga e Kombit) accompanied by burning and destruction, as well as the protest of Tirana’s “New Ring District” (Unaza e Re) residents.
The government responded to the violent protest on “Nation’s Road” by withdrawing its initiative and reviewing the financial consequences on residents of the Kukes region.
The government partially withdrew from the “New Ring District” project, acknowledging the falsification of the project implementing firm’s documents. But the failure of the Prosecutor’s Office and the other law enforcement agencies, to fully investigate this corruption case, created strong suspicions on the influence of the Government on the decisions and activities of the Prosecutor’s Office.
This issue, which received widespread media coverage, aggravated even further the objections between the political camps and strengthened the opposition’s claims that the judiciary institutions are captured by the majority.
Compliant to constitutional provisions, the President of the Republic on 05.11.2018 issued Decree no. 10928, setting June 30, 2019, as the day of elections for local government in Albania. The political parties concurred to the President’s proposal to hold local election on June 30. Not withstanding prevailing climate of political polarization both parties were still operating within institutions.
Approaching towards Election Day, oposition’s rights for parliamentary oversight were further restricted while international media exposed audio tapes extracted from two criminal files in possession of Prosecutor’s Office.
Criminal files no. 184 and 339, leaked data related to electoral crime, with reasonable allegations linking high officials of governing majority with notorious criminal gangs to rig election results in 2016 partial local election in Diber and 2017 general elections in Durres, in favor of the Socialist Party.
Enduring failure to investigate these penal cases and the fact that all individuals exposed in respective electoral crimes continued to enjoy full political immunity, incited opposition’s extreme decision to lift en bloc 182/58 parliamentary mandates. Governing majority reacted through an accelerated and illegal procedure to partially replace parliamentary mandates with remaining candidates belonging to opposition’s party lists.
182 MP’s and candidate MP’s lifted parliamentary mandates, exhausting opposition’s candidates list, running short of the constitutional number of Parliamentary mandates. Current parliament is composed of 122 MPs out of 140 foreseen by the Constitution.
The situation got further complicated due to the serious constitutional crisis in the country, consequent to the non-functioning of the Constitutional Court, since March 2018, and the contested unconstitutional appointment of a Provisional General Prosecutor, on 18 December 2017.
These and others were the serious repercussions of the unilateral implementation of judicial reform, in violation of Venice Commission recommendations for the constitutional changes reforming the judicial system in Albania.
The opposition decided to not register for June 30 local elections, commencing regular national protests marred by violence, with many police officers and citizens wounded or injured.
Parallel to opposition’s protests, the Prime Minister organised rallies in other cities, fixed at the same date and time, with both parties exchanging confronting and threatening rhetoric.
The constant and intensive efforts of the President of the Republic, including calls from other Albanian and international actors, to urgently reestablish political dialogue between the parties were unsuccessful. Both political sides engaged irresponsibly in a collision of power, which was escalating towards civil conflict.
Growing political antagonism associated with toxic and divisive rhetoric between the parties escalated and increased social tension, which could have uncontrollable consequences threatening public security, democratic stability and social peace in the country.
After a thorough and comprehensive analysis of present circumstances, including critical intelligence information possessed in the capacity as the Head of State, the President of the Republic decided to not sit indifferent to conditions which threatened both public security and political pluralism in the country. The President canceled June 30 local elections with immediate impact in easing social tension.
The President initiated political consultations with the political parties to set a new date for local elections. The President set October 13 2019 as the new Election Day for local government, ensuring the constitutional periodicity of elections, also offering the parties an opportunity to withdraw from poisoning antagonist positions and to put national interest above party politics.
As a consequence of vetting process and the intentional blocking of the functioning of Justice Appointment Council by the ruling majority stalling replacements of vacancies for two consecutive years, the Constitutional Court is no longer functioning.
This decision was taken without an appropriate legal base for postponement of elections. The communist legal framework still applied, while there was neither an ad hoc regulation established. Political will to allow for meaningful and genuine elections prevailed over legal stipulations.
Experts’ assesment that powers foreseen under article 92 letter c), ç), d), e), ë), f) and g) of the Constitution are of a formal kind is not accurate and runs counter to constitutional jurisprudence of the Constitutional Court of Albania. This jurisprudence has already established the role of the President of the Republic in exercising some of these powers beyond a formal kind.
There have been numerous instances of institutional disputes over the scope and range of powers that each institution can exercise. Some of these claims have been subject of adjudication/interpretation by the Constitutional Court.
Inter alia, the Constitutional Court in its decision no. 15/2010 established that the President does not exercise merely formal powers according to stipulations under article 92, letter ë of the Constitution. The Constitutional Court found that the role of the President of the Republic is substantial and not merely formal in the process of reaching an international agreement, because he represents the state’s will to enter such agreement vis-a-vis international authorities.
The Constitutional Court has ruled similarly also regarding President’s competences in relation to Armed Forces. The Court established in its Decision no10/2015 and Decision no64/2015 that in view of balance and separation of powers and to the establishment of competences between the President, the Prime Minister and the Minister of Defense, the President plays a substantial and not merely a formal role when exercising this power.
Most importantly, the Constitutional Court in its Decision no15 dt. 26.2.2015 para 9reasons on the role of the Head of State in our parliamentary Republic: “the competences of the President, based on legislative technique followed by the founders of the Constitution, have not been enumerated one after the other, but are dispersed through different chapters of the Constitution. Founders of the Constitution conceived the role of the President as an arbiter, a moderator of powers, a regulator, a neutral figure, with an important role in crisis resolutions, in balance of power, and in their respective operating functions.”
Similarly, institutional practice has shown that the President does not have formal powers neither when appointing the director of the State Intelligence Service. According to institutional practice, the President of the Republic has played a key role in preserving the check and balance system in cases of disputed appointments of this high office.
President’s power as foreseen in letter gj) of article 92 has never been subject to political debate or constitutional adjudication, because disputes over postponement of the date of elections have been so far timely resolved by political agreement between the parties. This fact does not automatically limit President’s power within a formal kind, especially in view of grave circumstances deriving from lack of political will to resolve a state of crisis through agreement.
The scope of the power to set elections under it em gj) needs to be assessed as part of the analysis of this opinion and in context of extraordinary circumstances created by political confrontation.
There is a fundamental constitutional difference between the rules on the termination of the mandate of local government bodies and the rules on the termination of the mandate of the Assembly.
The Constitution in Article 65, paragraphs 1 and 2, sets out in detail the rules on the beginning and ending of the mandate of the Assembly and the deadlines for the subsequent elections.
Such detailed provisions are missing in Article 109 of the Constitution, which provides for the election and term of office of local government units.
Article 109 of the Constitution does not stipulate when the mandate of the local elected begins or ends. Paragraphs 1 and 2 of Article 109 of the Constitution expressly provide that:
“1. The representative organs of the basic units of local government are the councils, which are elected every four years by direct general elections and by secret ballot.
- The executive organ of a municipality or commune is the mayor, who is elected directly by the people in the manner contemplated in paragraph 1 of this article.
This difference between the two constitutional provisions (articles 65 and 109 of the constitution) is not a constitutional negligence, but rather relates directly to the electoral model applied to the election of the executive body of the local government unit.
To illustrate, in circumstances where, for any reason, no candidate would be registered in a particular local unit within the time limit provided by law, then the election for that local unit would be postponed to a later date, beyond the mandate and the election period specified by the Electoral Code.
This extreme situation is not excluded from the constitutional point of view, and as it has been explained in the explanatory report, page 38, this has happened in Albania before. Thus the precedent exists.
Article 109 of the Constitution does not stipulate when the term of office of the elected local government begins or ends, or when the term of office begins and ends. These issues are regulated by the following legal acts:
- By the Electoral Code for the purpose of initiating procedures for setting the election date for the successor local authority;
- By law no. 139/2015 “On local self-government”, regarding the precise moment of commencement and termination of exercising the mandate by councils and mayors, in line with the principle of continuity of institutional functioning.
Article 10, points 1 and 2 of the Electoral Code, stipulates that:
Setting the election date for local government bodies
- The election date for local government bodies is set by a decree of the President of the Republic. For setting the election date for the local government bodies, the President complies with the rules provided for in points 1 and 2 of article 9 of this Code.
2.For the purposes of this Code, the mandate of local government bodies shall end on the same date of the same month of the fourth year after the date the CEC declares its decision on the election results nationwide for local government bodies.
Therefore point 2 of this article, which defines the procedure for setting the date of elections for local government, does not foresee the moment when the exercise of the mandate starts, but only the moment when the mandate of the local government bodies ends. The purpose is to calculate the deadlines for commencement of procedures for setting a new election date by Presidential Decree, a procedure that begins no later than 9 months before the end, according to the election code on the mandate of local government bodies.
Pursuant to Article 10/2 of the Electoral Code and referring to Decision no. 965, dated 10.08.2015, of CEC, announcing the final result of the elections for local government bodies in 2015, the President by Decree no.10928, dated 05.11.2018, set June 30, 2019, as the Election Day for local government bodies.
Article 10 of the Electoral Code does not provide or regulate in any of its paragraphs the moment when the current bodies of local government cease to exist, or cease to exercise their current mandates.
The Electoral Code is the law that defines the procedure for electing these bodies, not the way in which these bodies are organized, function, start, or terminate the exercise of their mandate.
The method of organization, functioning, commencement and completion of the exercise of the mandate by the local government bodies in the Republic of Albania is regulated by Law No. 139/2015 “On Local Self-Government”.
Every functional law in the Republic of Albania, including Law No. 139/2015, “On Local Self-Government” guarantees the application of the principle of continuity of functioning of public bodies, especially in the transitional periods of transfer of power, from the old body whose term of office ends, to the new body elected in compliance with the law.
Specifically, in Article 53, paragraph 1 of Law no.139/2015 “On Local Self-Government”, it is clearly provided that; “The municipal council shall exercise its functions from the date of constitution, in accordance with Article 48 of this law, until the establishment of the new successor council.”
The same will is envisaged by the legislator for the functioning of the Mayor in these transitional moments.
Specifically, in Article 60, paragraph 4 of Law no. 139/2015 “On local self-government” provides that: “4. The exercise of the mayor’s mandate begins at the moment he takes the oath and ends when the next mayor takes the oath.”
In this way, no functional vacuum is created in current local government bodies, until the election and commencement of the mandate of those elected by October 13, 2019 elections.
Also with the cancellation of elections on June 30, 2019 and the their postponement to October 13, 2019, the President does not extend the mandate of the current local government. Continuation of their term of office for a maximum of 3 months, stems from the constitutional periodicity of local government elections and provided by law no. 139/2015 “On local self-government”.
The purpose to provide ample time for both authorities and political forces for preparations for peaceful, democratic, free and fair elections was not thwarted, but rather ensured by President’s decree to postpone election’s date.
The OSCE/ODIHR final report admittedly reported that:
- The CEC interpreted the law in an overly broad and sometimes inconsistent manner, reducing legal certainty. The CEC registered the Democratic Conviction Party (DCP) as an electoral subject on 27 April, although the latter was only registered as a political party on 25 April, with a court decision becoming final on 10 May. The CEC did not require the newly registered DCP to collect supporting signatures.
- In several cases the CEC implemented the law inconsistently or in a manner that exhibited bias (see Candidate Registration). Some CEC decisions, including those on candidate registration denials and complaints, were published with a significant delay, which undermined transparency.
- The election administration was politically unbalanced due to the CEC’s interpretation of the law in such a way that allowed only those parliamentary parties that stand for the elections to be represented in election administration.Consequently, many ODIHR EOM interlocutors expressed lack of trust in all levels of the commissions.
- Rejecting the opposition’s request to replace the CEC-appointed CEAZ members, the CEC issued an “individual” decision, which requires a vote by a simple majority of its members. This decision was then given a “normative” effect, since the CEC instructed CEAZs to also reject DP and SMI nominees for VCCs and Counting Teams. Normative decisions require a two-thirds majority. According to the Venice Commission’s 2002 Code of Good Practice in Electoral Matters, “It is desirable that electoral commissions take decisions by a qualified majority or by consensus”.
- The political crisis intensified as Election Day approached.Many domestic stakeholders and the country’s international partners called for dialogue to resolve the political crisis, but political parties demonstrated little will overall to engage in constructive co-operation.
- This antagonism was indicative of the lack of shared responsibility toward the integrity of the electoral process that would transcend party divisions, and, consequently, negatively impacted the right of citizens to take part in government.
- Several EOM’s interlocutors across the political spectrum shared their belief that an agreement between parties was needed to prevent further erosion of trust in democracy, elections and politicians.
- Political confrontation led to legal uncertainty, and many decisions of the election administration were taken with the political objective of ensuring the conduct of elections.
It can be deduced therefore, that it was political confrontation between the parties which led to legal uncertainty and to an irregular electoral process. Whereas under such circumstances the decree of the President canceling 30 June elections and postponing to 13 October aimed exactly at upholding this key prerogative, to a regular and meaningful electoral process. The time-span created by the President’s decrees guarantees legal security for all, for the voters and the candidate elects.
Had the President not timely intevened through his decree, not only legal security of elections but also public security of the country would have had grave unpredictable repercussions.
The President of the Republic did not cancel elections. The President canceled 30 June 2019 as election date and postponed them to 13 October 2019, compelled by grave circumstances which did not allow a regular and democratic electoral process.
For more, as noted also in the OSCE/ODIHR 2019 report, serious shortcomings, including activity of CEC and running of unopposed candidates in half of the municipalities, did not allow for meaningful electoral process and increased legal uncertainty.
This argument is deficient of the fact that the President is also a guarantor of first instance of the rights of individual (as the Head of State and as representative of the unity of the people). The merit of the case is President’s responsibility to guarantee citizens’ rights “to elect” according to article 1, point 3, article 15,and article 45, point 1 and 4, of the Constitution.
The right “to elect” implies a necessary and meaningful plurality of choice, and not just the right to cast a vote. Public authorities must both respect and contribute to realization of this fundamental right.
As OSCE/ODIHR report concluded: In the climate of a political standoff and polarization, voters did not have a meaningful choice between political options.
In view of lack of meaningful choice, President’s decrees contributed to realization of this fundamental right.
Earlier precedents clearly show that the President is the exclusive authority to set, cancel and postpone the date of elections. Good institutional practice has established that a President’s decree setting, canceling and postponing date of elections is forerun by 1. Circumstances that do not provide for a regular electoral process due to, but not limited to, political disputes and confrontation and 2.Consensual political agreement of main stakeholders to set a new date of elections.
It is therefore necessary to examine whether the unwillingness of the parties to reach a political agreement should prevail over President’s constitutional obligation to preserve constitutional order and unity of the people, and at the expense of public security and democratic order.
This may be only a literal reading of the Constitution, not supported by judicial practice of the Constitutional Court, as the only institution with the legal right to its interpretation. The Constitutional Court has dealt with the principle actus contrarius, when the government proposed amendement of the law no 64/2014 “On the powers and authority of leadership and command of the Armed Forces of the Republic of Albania”, and tried to pass the competence to discharge or release in reserve the members of the Armed Forces to the Prime Minister. The Constitutional court decided that this amendment was unconstitutional, reasoning that transfer of this competence from the President to the Prime Minister would violate in essence President’s competence to assign military titles (article 92/d of the Constitution), creating thereof legal uncertainty. Court’s decision recognized President’s right to assign as well as remove a military title based on actus contrarious, notwithstanding lack of explicit provision in article 92/d) of the Constitution.
One of the fundamental rights and freedoms foreseen by the European Convention on Human Rights and the Constitution of the Republic of Albania is the right to vote, which must be personal, equal, free, secret and unaffected.
With his decision to postpone the election date, the President has defended the right to vote. Amid political clashes that spared neither attacks on polling stations, nor threats that voting would not be allowed on election-day, the President has defended this fundamental right that can only be assured when it is exercised peacefully, in a free, secret and unaffected way.
The OSCE / ODIHR report fully legitimizes the concerns of the President of the Republic in his decision-making to annul and postpone the election date.
The OSCE / ODIHR 2019 report concluded that:
- Although the ODIHR EOM witnessed cases of voter intimidation and violation of the secrecy of the vote in the voting centers and received similar reports from political parties, no such cases were officially registered, reportedly for lack of citizens’ complaints to the police. Several ODIHR EOM interlocutors expressed concerns about overall lack of effectiveness of criminal investigations that contributes to widespread perception of impunity over the past electoral crimes, including for vote-buying and pressure on voters.
- Citizens, especially those employed in public administration, came under pressure to demonstrate a political preference, which is at odds with Paragraph 7.7 of the 1990 OSCE Copenhagen Document.
- The ODIHR EOM received many allegations that public administration and utility enterprise employees were under direct and indirect pressure to engage in political activity during and after working hours. Several described direct intimidation and threats of firing or withdrawal of social service benefits. The ODIHR EOM observed municipal officials, health services and education staff at large SP-led rallies that in many cities were held immediately after working hours. The ODIHR EOM noted widespread perception among interlocutors and the public that employment in the public sector is dependent on political affiliation. Combined, this challenges Paragraph 5.4 of the 1990 OSCE Copenhagen Document.
The provisional suspension of election date accompanied with immediate efforts to restore political dialogue on setting a new election date were the only solutions that could prevent irreparable consequences to the detriment of the public and constitutional order, including the right to elect and be elected. These arguments and others listed in decree no. 11199 make the intervention of the President appropriate, reasonable, fully proportionate to the protection of the public interest and fully legitimate. This decree was the first step, followed by the second decree of an affirmative character.
This conclusion no longer stands, following the above explanations.
This finding is incorrect. The reasons accompanying Decree No 11199, as well as others in the Explanatory Report and Annexes thereto, are explaining in detail and in a chronological order which were the facts, data and the information assessed by the President of the Republic to annul the elections on June 30th and postponing them on October 13th, 2019. The information provided by the Head of State on the situation in the country and submitted to the Special Investigation Commission is not the only information on which the Head of State relied in his decision-making. The risk of a destabilizing situation was permanent. The facts and data indicated that the culmination of the risk was not only the burning of the Assembly, but the commission of various acts which could lead to an uncontrolled and unmanageable situation where conflict could escalate to the point where the life of the citizens was endangered. The information provided by the Intelligence Services was assessed in combination with all other standings and assessments of the situation held by the elite of society, prominent personalities, local and international organizations.
It should be noted that over the days since its start, the crisis in Albania began to exceed the dimension of a political, institutional, constitutional and representation one. It deeply affected all sectors of the country, such as the economy, tour operators, small and large businesses, etc. This crisis raised serious concerns in neighboring countries which through their public statements said they feared a massive exodus from Albania to their countries, as well as the risk of destabilizing the region.
For the first time, unprecedentedly, the leaders of the religious communities in Albania have repeatedly appealed to stop a possible bloodshed, the suicide of the nation, and the danger that leads to a deadly abyss; Albania’s Council of Ambassadors addressed a letter to German Chancellor Angela Merkel and French President Emmanuel Macron to intervene in resolving the crisis; The International Business Community expressed through numerous statements that they were concerned about the severe climate that the crisis brings to the investment and it impedes the foreign investors; some groups of intellectuals made and signed public petitions calling for immediate solution of the crisis; European Union officials, Ministers from neighboring countries such as Greece and Italy, members of the German Parliament and from other countries expressed concerns about the serious obstruction of Albania’s EU integration process and the destabilization of the region; local, neighboring, European and world media reported a chaotic situation in Albania and warned of a potential civil conflict; local and international analysts predicted scenarios of a severe civil conflict and confrontation; statements made by the State Police, such as that of May 12nd, 2019, indicated 84 persons prosecuted for acts of violence, including 50 arrested; The Ombudsman reacted with concern to the violence exercised by the State Police against the citizens participating in the protests; the ordinary citizens expressed fear and panic and the information provided by the President of the Republic signaled a favorable climate of deliberate destabilization by third factors.
Also, throughout the crisis, the EU Delegation in Tirana, the US Embassy and those of the EU countries in Tirana have made strong calls, statements and appeals against the violence caused during the protests, stubborn attitudes between the parties and the risk that Albania is facing in relation to the EU integration process.
On the other hand, these calls by diplomats in Tirana were also accompanied by announcements for their citizens to be aware of the violent situation caused by the protests or the risks and possible escalation of the situation. This entire unprecedented context made the crisis even more threatening to the country’s security, the health of Albanian citizens, social order, the economy, possible civil conflict, damage to people and institutions, the country’s integration and stability in the region.
So all these facts, data, circumstances and collected information that warned the provoking of a destabilizing conflict, the necessity of urgent deterioration of the situation, violation of political pluralism in the country, blocking of Albania’s European Integration Process, were evaluated by the President of the Republic, who with full constitutional responsibility, on June 8th 2019, decided to repeal the Decree No 10928, dated 05.11.2018 “On the Election of Local Government Bodies on June 30th, 2019”, by repealing June 30th 2019, as Election Day and he announced its decision-making by asking, at the same time, that all responsible local and international actors to join together to make constructive contributions to the urgent restoration of the irreplaceable political dialogue and to find a quick solution that serves to the European future of Albania.
What should the President of the Republic do in such a situation, when the Prime Minister and the majority were not reflecting, but on a daily basis they were holding the public position that June 30 was non-negotiable? Did the situation have to be chaotic and to have casualties in order that the President of the Republic to issue a Decree?, or the President had to wait that one of parties to the conflict as the Prime Minister (the Government) to instruct the President on how to act in such a situation?
It is necessary that the experts of the Venice Commission, in giving this opinion, should have assessed the entire context of the time when they happened and not a part of them. Summarizing the circumstances in a single detail, it will lead necessarily to superficial and consequently to incorrect evaluation.
Related to this issue, the Venice Commission Reporters should carefully assess President’s Explanatory Report submitted to the Venice Commission, Chapters XII-XIV, pages 23-27 and the Annex attached of Chapter VII-VII, pages 56-80 where all the facts and details on this matter, because the fact-finding visit to Tirana on 10th – 11th of September 2019, can never establish a complete picture of the local context.
This finding by the Venice Commission Experts is superficial and seems to be evidenced in this way to support the incomplete assessment of the created situation referred in paragraph 52 of this Draft-Opinion and hereinafter.
The statement of the Minister of Interior is understandable because of his institutional responsibilities as well as in the function of the persistence of the majority to hold the June 30th voting by all the means and at any cost.
But this statement of the Minister of the Interior has nothing to do with the unprecedented international warning statements of the international community in the wake of the 8th of June protest, nor with the headlines of the local and world media warning an outbreak of the civil conflict in Albania.
The President of the Republic has been consistent, open, transparent, and has provided to the Venice Commission an exhausting assessment and information that altogether provide a clear overview of the high and constant level of risk to the country in all the aspects.
It should be noted that it is an undeniable fact that the Presidential Decrees on the cancellation of the date of June 30th and the postponement of the Local Elections on October 13th, led to immediate soothing of tensions and the averted civil confrontation in Albania.
The situation can not be assessed on the basis of Article 170 of the Constitution and the reference to this legal basis is inappropriate.
It is true that according to Article 170/6 of the Constitution during the period of application of the extraordinary measures, no local government elections are held. This constitutional provision does not mean though that in a de facto extraordinary situation elections can take place, although the state of emergencyhas not been declared.
The constitution provides that the “state of emergency” is established by law. This means, by an act proposed by the Council of Ministers and approved by the Assembly. So it is required by law the will of the political party (majority) who was and is part of the conflict and who permanently declared June 30th as the day of the battle with the opposition.
Prime Minister sent 7 public letters to the Leader of Opposition urging dialogue on every issue, excluding the date of June 30th as a non-negotiable date for the majority.
The opposition, for its part, said it would not allow elections on June 30th.
This opposition demand was absolutely non-negotiable for the Prime Minister and the Government, despite calls by the German Bundestag and other international representatives to restore unconditional dialogue, including on the date of 30 June elections.
Just in this situation of political crisis, where one of the conflicting parties (the majority) which has the constitutional obligation to act with the aim of creating a suitable terrain for both, dialogue and regular elections, shows no constructive commitment, the risk is escalating to the extent that it significantly establishes the ground for destabilizing the country.
It is therefore perfectly legitimate that the Head of State in the face of this extreme need would have to interfere with the means at his disposal to put down the cause of the conflict in order to avoid the consequences. These reasons make it entirely justifiable for the President of the Republic to repeal the earlier Decree by annulling the June 30th elections and at the same time creating a space for dialogue to postpone them to another close date.
This is a plain exercise of duties and functions of the President in a Parliamentary Republic, in times of crisis. The President has to afront the conflicting will of both parties, deliberately departing from their duties and responsibilities, thus remaing the only reliable institution serving to the general interest of the country.
Channeling the management of this situation under Article 170 of the Constitution is not feasible and does not respond to actual circumstance.
It is relevant to note that the Electoral Code does not contain any specific rules for election without opponents. This finding is also evidenced in the OSCE/ODHIR 2019 Preliminary and Final Reports.
The Electoral Code embodies principles of Constitutional provisions and of European Convention on Human Rights, the implementation of which does not recognize the logic of unopposed elections.
This finding represents the necessity for the amendments of the Electoral Code to regulate this aspect as well, by exhausting what the procedure will be and which is the authority that takes the actions to assess the situation in this case.
But in the absence of this provision in the Electoral Code to address to this situation, constitutional and ECHR provisionsare directly applied, which oblige the conduct of elections only with alternative candidates.
The expert comment on the violation of the right to vote is very faint and superficial. The President of the Republic, among the main reasons where he supported the cancellation of the elections on June 30th and their postponement on October 13th, he listed precisely the respect of the constitutional right of citizens to vote. The non-participation of the entire opposition in the elections and the fictitious registration as an opposition party of the subject “Bindja Demokratike” denied the right of the citizens to choose between alternatives. This is precisely what the President of the Republic tried to avoid in order guaranteeing the constitutional right to elect.
The Statement of Preliminary Findings and Conclusions issued by the OSCE/ODIHR on 1 July and 5 September concluded that: “The 30 June local elections were held with little regard for the interests of the electorate and in the climate of a political standoff and polarization, voters did not have a meaningful choice between political options. In 31 of the 61 municipalities mayoral candidates ran unopposed”.
The President in his decision-making was not lead to ensure the protection of the political interests of the two political forces (PD and LSI). Although it is a fact that in the last parliamentary elections held in Albania in June 2017, the current opposition political parties (PD, LSI, PDIU and other parties) secured 48.14% of the total votes respectively, while the Socialist Party and its allies, which still form part of its political alliance, have secured a total of 49.83% of the votes as a political subject.
While in the last local government elections held in Albania in June 2015, these political forces that constitute the opposition today have secured about 48.6% of the votes, while the Socialist Party in this election process with its allies which still form part of its political alliance, has secured a total of 43% of the vote as a political subject.
In addition to these facts, the President, in his decision-making, aimed to create opportunities for the elections to be held in a competitive democratic spirit to give any other opposition force or independent individual the opportunity to be registered in accordance with the law to compete. Include here the political subject Bindja Demokratike that was registered by the CEC in violation of the law.
Referring to these data, the holding of elections for local government bodies on June 30, 2019, without the participation of the opposition representing at least half of the Albanian electorate and no other real candidates, does not represent a constitutional crisis, but essentially violates the constitutional principle of political pluralism and the right of the individual to choose between alternatives, principles which enjoy special protection by the Constitution and the European Convention on Human Rights.
Related to this constitutional argument, the President has long reflected in issuing Decree No 1199, dated 10.06.2019, and this fact must necessarily be reflected in the Venice Commission’s expert assessment.
The connection that the experts make to the participation of the two opposition forces in the elections with Article 170 of the Constitution at this point is illogical.
It is true that participation or not in a competition process is the choice of the political subject, but on the other hand, it is the duty of the state bodies to guarantee the conditions for a peaceful, democratic, free and fair election, in order to fully respect the right to elect. The constitutional concept of “to elect” or “to be elected” should not be seen and cannot be considered fulfilled only in the formal aspect of the possibility of citizen participation in voting.
The experts’ finding in the first paragraph of point 68 is completely wrong. The President of the Republic is quite clear that the case treated by the European Court of Human Rights in the case of Riza and others v. Bulgaria does not looks like the circumstances of the June 30th elections in Albania. This Decision of the ECHR is related to how this Court has interpreted the content of Article 3 of Protocol No 1 of the Convention, which states that “Member States shall organize, within reasonable time intervals, free elections by secret voting in conditions which ensure the free expression of the opinion of the people”.
In considering this issue, the ECHR, in paragraph 148 of its Decision, states that:
“1. The active electoral right as guaranteed by Article 3 of Protocol No. 1 is not confined exclusively to the acts of choosing one’s favorite candidates in the secrecy of the polling booth and slipping one’s ballot paper into the box. It also involves each voter being able to see his or her vote influencing the make-up of the legislature, subject to compliance with the rules laid doën in electoral legislation. To alloë the contrary would be tantamount to rendering the right to vote, the election and ultimately the democratic system itself meaningless.”
According to the ECHR, the European Court of Human Rights enjoys the exclusive authority to interpret the Articles of the Convention and its protocols and under these circumstances the President’s reference to this case is not made because of the similarity of the cases between Bulgaria and Albania, but of the interpretation that the Court has made to Article 3 of Protocol 1 to the ECHR. Referring to the interpretation of the court in this case, but also in many other cases, it turns out that the principles of the Convention have been severely violated by the holding of local elections on June 30th, 2019, without competition, without candidates, without participation of the real opposition, in a tense political situation and the risk of escalation to a social conflict.
This approach is inappropriate and not fair. In no case the President has consideredthat the boycotting of the elections causesapriori exceptional circumstances referred to in Article 170 of the Constitution. But political antagonism and the declaration of June 30thas the day of the battle and power collision between political parties, preceded by escalation of violence, constitute objective and non-subjective circumstances for incapability to conduct a fair election process.
Experts’ assessment in this regard extends their mandate. The Albanian Assembly has not required an opinion on these issues. Contrary to the good tradition of the Venice Commission, experts have indirectly given biased political opinion and conclusions aimed at legitimizing the June 30th election process. This goes beyond the mandate of the Venice Commission experts and the subject of the review for which they are authorized.
Related to the June 30th elections, the OSCE/ODHIR mission has been clearly and explicitly expressed in its Final Report dated September 5th 2019, as the highest institution of expertise in electoral matters. The OSCE/ODIHR report was prepared after a 3-month monitoring of the pre- and post-election situation in Albania, with the participation of over 200 international election observers and experts.
Questioning the intentions and reasons of the President of the Republic is unacceptable. The Decrees of the President of the Republic explicitly express the purpose of postponing elections, related to the necessity to avoid bloodshed, protecting political pluralism, preserving the stability of the country and Albania’s democratic credentials. These goals cannot be questioned.
Again, questioning the legitimacy of President’s intention to postpone elections is unacceptable.
The Constitution and the Electoral Code do not regulate this situation, as they do not include any provisions on the conduct of elections with only one candidate.
But in a situation of severe unprecedented political crisis and representation, and when neither party assumes respective responsibilities, but stubbornly head towards conflict, the President cannot remain indifferent to repercussions that threaten public safety and constitutional order.
As a representative of the unity of the people, the President has broadly interpreted his constitutional authority to set the new election date in two steps. The first step with the repeal of an earlier decree annulling the holding of elections on June 30thand the second constitutional step was setting the date for October 13th as election date. If it is necessary to improve this legal situation either at the constitutional level or at the level of the Electoral Code, this does not mean that the President of the Republic is restricted to intervene or that he has exceeded his constitutional powers.
The Albanian Constitution is the fundamental law of the state and the powers and role of the President envisaged in the constitutional text cannot be interpreted in the light of the Electoral Code. But there are the principles and provisions of the constitution that form an entity of norms that guide the social life in the country, even though not every crisis situation can find a solution through law.
The Albanian Assembly has not submitted any question to the Venice Commission whether the President exceeded his competences! Even if such a request was submitted, coming out with such conclusions on a particular issue would be unprofessional for the mandate of the Venice Commission. Thus with regard to the conclusion reached in point 76, the experts are outside the scope of their activity and outside their consultative area.
The President of the Republic in his decision to annul the elections on June 30th, 2019 and to set October 13th, 2019 as the day of the elections, has taken maximum care not to violate the periodicity of the elections.
Article 3 of the First Protocol of the European Convention on Human Rights provides:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
This principle of the ECHR is also found in points 1 and 2 of the Article 109 of the Constitution of the Republic of Albania, which states that: “1. The representative bodies of the basic units of local government are the councils, which are elected every four years by direct general elections and by secret ballot. 2. The executive body of a municipality or commune is the mayor, who is elected directly by the people in the manner contemplated in paragraph 1 of this article.”
Both the text of the Convention and the text of the Constitution require that the conduct of elections in addition to periodicity shall meet certain elements that are at the core of a functioning democracy.
Concerning the periodicity of their conduct, the Convention stipulates that they must be conducted “at reasonable time intervals” and the Albanian Constitution defines that “local government bodies are elected every four years”.These provisions clearly showe that the President of the Republic in his decisions has fully respected both these primary rules.
In order to ensure compliance with the obligations of the Convention and the principles of the Constitution, which dictate that elections must be free, secret, in conditions that ensure the free expression of the people’s opinion, the President postponed the elections until October 13th, 2019. The President neither canceled completely an electoral process, nor postponed the elections indefinitely.
The respect toward the Constitutional periodicity has been taken into consideration by the President of the Republic in both, Decree No11199, dated 10.06.2019 and Decree No11211, dated 27.06.2019 (see the reasons accompanying Decree No11199, Explanatory Report submitted to the reporters of the Commission)
Article 109 of the Constitution does not provide when the mandate of the elected local government begins or ends, or when the exercise of their mandates begins and ends. These issues are regulated by the Electoral Code for the purpose of initiating the procedures for setting the election date for the local successor body and the Law No 139/2015 “On the Local Government”, regarding the precise moment of the beginning and termination of the exercise of the mandate by councils and mayors.
With the cancellation of the elections on June 30th, 2019 and the postponement of their conduct on October 13th, 2019, the President does not extend the mandate of the current local government bodies at all, because guaranteeing the principle of the functional continuity and the moment of the begginingt and termination of the exercise of their mandate is provided by Article 53, paragraph 1 and Article 60, paragraph 4 of Law No 139/2015 “On Local Government”.
The postponement of the elections to be held on October 13th, 2019 is not an extension of the term of the mandate of the local government bodies done by the President of the Republic, but a continuation of their term of mandate for a maximum of three months, as a opportunity deriving from the constitutional periodicity of local government elections and provided as a situation by Law No 139/2015 “On Local Government”.
However, this situation falls within the spirit of the constitutional provision of Article 109 which deals with local election periodicity. This provision of the Constitution foresees that the representative and executive bodies of the local government units are the councils and mayors, who are elected every four years by general, direct and secret ballot.
Consequently, given the fact that the previous local government elections were concluded with the final result in August 2015, their development on 13th of October 2019 does not violate the constitutional principle of the periodicity of their conduction.
As recognized in the reasoning of Decree 11199, before the strict application of the rules of the Electoral Code, the President has argued that it is a priority to respect the Constitutional standards to ensure that through his acts, the protection of the unity of the people, the political pluralism and the social peace in the country are guaranteed.These are constitutional principles that prevail over any other procedural aspect of the Electoral Code, but always within the Constitutional periodicity of Article 109.
Accordingly, the annulment of the Decree and consequently the annulment of the election date and their postponement beyond the electoral period set by the Electoral Code, under the circumstances when it is done to protect the constitutional values and principles, the basis for democratic functioning of the state and its institutions, does not represent any obstacles from the constitutional point of view.
The President through his decision-making aimed at avoiding bloodshed, defending political pluralism, preserving stability and upholding the democratic credentials of the country.
The President in his reasoning of Decree No 11199, dated 10.06.2019, has made it clear that decision to cancel the elections on 30th of June and to postpone them to a near date within the constitutional periodicity determined by Article 109 of the Constitution, is done to guarantee the unity of the people, political pluralism, social peace in the country and constitutional principles that prevail over any other formal aspect provided by the Electoral Code.
The President’s Decrees are still in force and none of the parties has challenged these acts before any court of any level.
Even the Electoral College in its decision of the 24th of June did not express in its dispositive on the validity of Decree No 11199. The two Decrees of the President have been issued only on the basis of constitutional provisions and arguments and; given their nature these acts may only be opposed and examined by the Constitutional Court.
This view was also maintained by the OSCE/ODHIR mission, which in its Final Report states that the Constitutional Court is the only mandated body to rule on the constitutionality of the Presidential Decrees, while the Electoral College is mandated to supervise the legitimacy of the electoral process.
Another finding of the OSCE/ODIHR mission is that the absence of the Constitutional Court was one of the causes that increased legal uncertainty over the elections. This Court has not operated for 18 months.
If Albania had a functioning Constitutional Court, President’s Decrees could have been challenged by the majority or any other interested party, and everyone could get a definitive answer on either of the Head of State’s Decrees or on the constitutionality of the electoral process intended by the majority on the 30th of June with no alternatives and no candidates.
With every political party demonstrating a lack of ability and willingness to return to the constitutional limits of its activity, the Constitutional Court would have preserved intact the principles of separation and balancing of powers and the independence of institutions, or guarantee governance of the country within constitutional boundaries. Absence of the Constitutional Court is not only one of the essential causes of this critical crisis, but further complicates its resolution.
This issue cannot be resolved through procedures initiated by the Assembly on impeachment of the President. The whole issue concerns about the disagreement of competences between the two bodies provided for by the Constitution (the President and the Assembly) over the interpretation of the constitutional provisions on their respective competences. According to Article 124/1, Article 131, point 1, letter c) and ç) of the Constitution, the Constitutional Court is the only institution to adjudicate on disputes of this nature.
Under the conditions when the President of the Republic has expressed his will through the Decrees issued on 10th and 27th of June 2019, and when the Assembly has already expressed its will by Resolution dated 13th of June 2019, it is clear that we face a constitutional institutional conflict that is resolved by the Constitutional Court, which shall have to carry out a final interpretation on the role of Head of State in times of crisis regarding his competence to set the election date.
The establishment and the functioning of the Parliamentary Investigation Commission “On checking the legitimacy of the actions conducted by the President of the Republic” is carried out against the Constitutional principles of the rule of law, the separation and the balancing of powers. By voting on a Resolution on 13th of June 2019, the Assembly of Albania has already expressed its will over the acts (Decrees) and the activity of the President of the Republic. The activity of the Assembly and the Investigation Commission is under serious conditions of non-compliance and conflict of interest, as the outcome of the Investigation Commission’s work shall follow the same political will and stance held through the voting of the Resolution on 13th of June. All the deputies, members of the Parliamentary Investigation Commission have been in favor of the resolution of the Assembly on 13th of June 2019.
In these circumstances, their activity as members of the Investigation Commission is incompatible, in conflict of interest and contrary to the Constitutional principle for the conduct of a regular legal process.These members have already expressed their will and stance on the activities and the Decrees of the President of the Republic since 13th of June 2019, and consequently the entire investigation and evaluation process is fictitious. This situation cannot be ignored by the Venice Commission but it must also receive an exhaustive explanation by it.
The absence of one or more provisions in the Electoral Code that regulate the procedure of postponing the elections is a finding that should serve to the Assembly which in the framework of the electoral reform to complete this legal vacuum noted both by the President and the Venice Commission.
The existence of this vacuum in the Electoral Code cannot limit the role of the Head of State in resolving the crisis and in setting a new election date, since the President in his acts has referred directly to the provisions of the Constitution, including Article 92/gj, which defines the right to set election date. The fulfillment of a legitimate goal and the protection of the public interest in an extreme situation as the country was going through, it necessitated the intervention of the Head of State, who through the means provided by the Constitution (the Decree) intervened by repealing a previous Decree and concluding this constitutional process by issuing a second Decree on the setting of a new date for the conduct of elections.
As it is clearly reasoned in the issuing of Decree No 1199, dated 10.06.2019, the protection of the public interest, including the avoidance of bloodshed, the protection of political pluralism, the right to vote, the stability in the country and the democratic credentials of Albania is primary and prevails over any other formal aspect.
This is the role that the Constitution of the Republic of Albania has defined for the President of the Republic, designed from the beginning as a neutral figure, as a Constitutional Arbitrator, moderator, regulator, and with a key role in resolving crises. The President of the Republic, in accordance with the Article 93 of the Constitution in exercise of his powers, issues Decrees, as he did in the current case by arguing his purpose.
The expert’s opinion is unclear at this point. Reference to the Article 170 of the Constitution for establishment of state of emergency requires that this initiative is taken by the government and then decided by Assembly, institutions that were and are parties to this conflict.
Since April-May and onwards, through their actions they had determined and made public the will that the 30th of June was a non-negotiable date, declaring it a day of battle and power collision with the opposition.
Thus, under the conditions of a sharp political antagonism, escalating to physical confrontation and violent acts, and through the signaling for the misuse of this situation in order to destabilize the country, it was revealed an extreme situation that necessitated the intervention of the President of the Republic. The lack of political consensus as a consequence of determination to conflict between the parties cannot limit the role of the Head of State or his constitutional competences to act within the constitutional periodicity, and in fulfilling a legitimate aim by giving absolute priority to the national interest of the country.
As justified above by the experts of the Venice Commission, the President of the Republic, with his intervention, did not intend the complete annulment of the elections. This would be a direct violation of the right to vote and the right to be elected. As rightly evidenced by the experts, the President, through the acts issued by him, intended to delay them for a short term in order to bring a new opportunity for the parties to dialogue, and to find a spirit of cooperation /dialogue.
Under the circumstances when in the timeframe from the 8th of June to 26th of June the parties did not reflect, the President in application of his constitutional obligations through Decree No 11211 set a new date, 13th of October, which is within the election period provided by the Electoral Code. This date is also set in accordance with the procedural deadlines of the Electoral Code enabling all political entities to register not only as competitors in elections, but also to appoint their representative in the zonal electoral commissionswithin deadlines provided by the Code.
These arguments and others listed in Decree No 11199 make the intervention of the President appropriate, reasonable, fully proportionate to the protection of the public interest and fully legitimate.
Referring to these facts, the intervention of the President of the Republic is in application of his exclusive constitutional right to set the election date and to fulfill a major interest.
This finding is incorrect. Preconditions identified by the experts includemeasures and actions that should have been takenby the parties in conflict. In a situation where neither side reflected a spirit of dialogue but settled on a path of conflict leading the country to bloodshed, and when the electoral terrain did not provide for a process in line with constitutional principles and provisions of the ECHR, temporary suspension of election date and search for political dialogue tools to setting a new date,were the only way to preventunpredictablerepercussions for public and the constitutional order.
The apparent and permanent lack of constitutional loyalty by the majority to undertake steps falling under their responsibility and the opposition’s refusal of a political agreement, could not be disregarded by the President as a significant risk requiring intervention without further delay.
This intervention of the Head of State was carried out by the Constitutional means available to the President (Decrees) and in the exercise of the exclusive competence to set the election date.
For these and other reasons described in the Decree No 11999, the President’s intervention was appropriate, reasonable and fully proportionate to the protection of the public interest and wholly justified with reference to the situation which generated it.
The primary constitutional duty of the President of the Republic is to guarantee the unity of the people and to uphold the democratic values and the principles sanctioned in the Constitution of the Republic of Albania.
The absence of the provision in the Constitution on how the President of the Republic amends the acts issued by him does not prevent him from using legal institutions. The repeal of the act by itself the body that issued it is a fundamental principle of the public right that is self-evident and does not need to be provided in the Constitution. Meanwhile, setting the election date is an exclusive right of the President. If this instance needs further regulation, then Venice Commission may recommend necessary changes in legislationto the Assembly, as the body that has invested it.
It is the duty of all state and non-state bodies to enable the democratic coexistence in the country and to offer within the electoral process some competitive alternatives.
As a rule, this task is principal to the governing political force which shall have to demonstrate sufficient political will that it does not want to occupy the local government without a real competition. The election processes conducted without competition and without competing alternatives would violate democratic standards. The whole system of the local government would not be based anymore on a system of elections as provided in Article 1, paragraph 3 and Article 109 of the Constitution, but on a system of direct nomination of the representative and executive bodies of the local government units. The latter would infringe the structure of democracy (from bottom- up) and the participation of voters in the local government, violating the constitutional rights sanctioned in Article 1, paragraph 3, Articles 45 and 109 of the Constitution.
The voluntary non-participation in the elections of certain political forces would not be able to block a fair electoral process if the ruling majority provides sufficient opportunities and time for the regular registration of other political forces or individuals who wish to participate in them.
The President’s Decree on postponing the election date, 30th of June, within the constitutional periodicity was intended precisely to provide this opportunity as the stone of democratic governance through meaningful elections with alternative competitors.
However, this issue is outside the scope of the scrutiny of the Venice Commission and it cannot find a space in the legal elaboration related to the Decree of the President of the Republic.
The conditions for the conduct of the electoral process and the non-participation of the opposition in those elections have been extensively elaborated in the OSCE/ODIHR report as the highest specialized institution dealing with the electoral matters.
The conclusion given by the reporters of the Venice Commission is beyond their mandate. Even the Assembly of Albania that has requested to the Venice Commission an opinion has not submitted such a question to the Commission!
By drawing conclusions of such nature (not advisory), the experts have indirectly assumed the role of the Constitutional Court. According to the Constitution of the Republic of Albania, the verification of the constitutional validity of acts of different powers is recognized as an exclusive right of the Constitutional Court. In conclusion, the Venice Commission has gone beyond the advisory role invested by the Albanian Assembly.
The President has not violated any Article of the Constitution, nor has he exceeded his Constitutional competences, as long as there is no prohibitive provision in the Constitution, and when the Constitutional Court has conferred on the Head of State a substantial role in the exercise of those competences considered formal by the experts of the Venice Commission.
The President, like any other public body, has issued an act that repeals an earlier act, followed by another Decree setting the date of election, without restricting the fundamental right to elect and to be elected.
In the midst of a serious political crisis accompanied with profound social frustration and tension, and in the absence of a “discharge valve” such as the functioning of the Constitutional Court, the President has intervened by broadly interpreting his role and competences, exercising them in a proportionate manner and in accordance with the situation which has generated it, with the aim of restoring political stability, preserving social peace and unity of the people and respecting basic constitutional principles.
This paragraph contradicts the above mentioned explanations. It makes no sense to say that the lack of legal provision (in the Electoral Code or a Law with temporary effect) leads to conclusion that the President has exceeded his competences! This finding may be considered acceptable in a normal situation, but not in the circumstancesthat compel intervention in an extreme situation caused by the irresponsible behavior of political parties, including both, majority and opposition.
While the experts agree that circumstances and conditions leading to this decision of the President should be taken into consideration, thus to invest in the substantive analysis of the case by indirectly acknowledging the theoretical possibility of the full legitimacy of this act, they fail to analyze the entirety of facts and circumstances.
This partial approach to facts infringes both experts’ analysis and conclusions. Under conditions of political normality, although in polarized political climate, the President issued election decree since November 5th, 2018. Until 8th of June 2019, the President did not find it appropriate to intervene apriori and arbitrarily to change the date of the elections, believing that the wisdom and national interest would prevail over the party interests.
Analysis and conclusions of the experts lack any assesment for the role and responsibility of the Head of State in protecting public safety and the constitutional order when these are threatened. Understanding the experts’ inability to objectively assess the real extent of this threat, it would nevertheless be appropriate for the Commission to devote a special theoretical assessment to the Head of State’s role and activity in times of crisis and when other constitutional control and balance mechanisms are out of function.
- Additional Comment
In addition to the above comments, the President of the Republic brings to the kind attention of all members of the Venice Commission that the essence of claims and stance of the (applicant) Assembly of Albania vis a vis the decision-making of the President of the Republic are closely related to the initial and different interpretation that these two bodies make to the constitutional norms on the powers of the President of the Republic, their nature, and the role of the Head of State in times of crisis, as Albania currently is.
In real terms we are facing an institutional conflict over competences each authority, which according to Article 124/1 and Article 131 point 1/c/ç of the Constitution should and can be resolved only by the Constitutional Court of the Republic of Albania. Contradiction to the way how the President of the Republic exercised his competences in his role of arbitrator to resolve the crisis, has turned into an institutional conflict between the Assembly and the Institution of the President.
The establishment and functioning of Parliamentary Inquiry Commission “On controlling the legitimacy of the actions carried out by the President of the Republic” is being conducted in violation of constitutional principles on the rule of law, the separation and the balancing of powers, and with the aim of avoiding constitutional adjudication of conflict of competences.
The majority’s aim is to legitimize the unconstitutional voting process of 30th of June by misusing the Venice Commission report. The majority intends to counterbalance OSCE/ODIHR report blowing this irregular process, with the Opinion of Venice Commission, thussimultaneouslychallenging the authority of both institutions.
The background of the denunciation of the corruptive affair on the infrastructure project of the “New Ring District” is attached to expository report submitted by the President.