22 June 2020 Statement by the President of the Republic on the Final Opinion of the Venice Commission on the Appointments of Judges in the Constitutional Court
I. The Venice Commission confirmed clearly that the cause of the institutional clash between the Assembly and the President of the Republic was the illegal actions of former Chair of the Justice Appointments Council, and in particular the manner in which the lists were sent by him.
The Opinion clarifies without any equivoque that the individual responsibility of former Chair of JAC, for the timing and manner of submitting the lists, is fully proven because he did not discuss it in plenary meetings with all JAC members as required by law.
Here’s what the Opinion of Venice Commission states in paragraph 92:
92. “The most relevant issue caused by the decisions of the JAC in 2019 in relation to the appointments to the Constitutional Court concerns the timing of the transmission of the lists of ranked candidates to the President and to the Assembly…”
“…This caused a major procedural incident….”
“…This modus operandi was not discussed in JAC….”
II. Venice Commission confirmed that JAC has acted in a non-transparent manner and the exclusion of the Ombudsman from JAC meetings is an unconstitutional act.
Here’s what the Opinion of Venice Commission states in paragraph 90:
90. “In addition, the JAC did not work in a transparent manner.
Transparency is crucial to create public trust in the appointment procedure, hence in the Constitutional Court.
Yet, the JAC disregarded the constitutionally mandatory presence of the People’s Advocate as an observer in the selection by lot, as well as in the meetings and operations of the JAC (Articles 149/d (3) and 179 (11) of the Constitution)…”
III. Venice Commission in paragraphs 96, 98 of the Opinion confirmed as definite that the President’s actions, were in full compliance with the Constitution and the Law, but also that they have maintained the constitutionality of the entire appointment process.
In these paragraphs, Venice Commission, confirmed as just the appointment by the President of the second judge and the refusal to accept the oath of a self-elected candidate after the declaration before a notary
Here is what the Venice Commission states in paragraphs 96-98 of the Report:
96. “… Furthermore, had the President chosen two candidates, the Assembly would have disposed of a list of less than the minimum three candidates required by the Constitution…”
“… Finally, the candidate chosen by the President had become one of the first three on the JAC list, following the election by the Assembly of candidate number 3 on the list….”
98. “… It therefore seems justified that the President refused to accept the oath of the judge allegedly appointed by default…”
IV. Regarding the anti-constitutional law of the majority to change the procedure of the taking of the oath by the judge before the President, Venice Commission confirmed that the oath of the Constitutional Court Judge is taken only before the President of the Republic and is a precondition not only for the beginning of the office but also for the confirmation of the legitimacy of the judge’s mandate.
Venice Commission in paragraphs 99 – 100 of the Opinion states that:
99. “…The Venice Commission notes that Article 129 of the Constitution provides that a judge of the Constitutional Court begins his/her duty after taking the oath in front of the President of the Republic (emphasis added).
Such a requirement is widespread in constitutional systems in order to clearly determine the point in time when a judge’s authority starts and to confirm the legitimacy of his or her mandate.
The Albanian constitution makes it clear that taking the oath in front of the President is a precondition for taking up office”.
100. “… In the Commission’s view, the constitutionality of this amendment is doubtful as the Constitution clearly states that the oath should be given “in front of” the President…”