23 June 2020 A kind explanation of good intent from the Spokesman of the President of the Republic, Mr. Tedi Blushi for colleague Ani Ruci
I regret that chronicle “Tirana: Functioning of the Constitutional Court on the agenda” written by my respected colleague Ani Ruci for “DW”, on 23 June 2020, does not reveal the clear findings and explicit recommendations of the Venice Commission on the process of Constitutional Court appointments.
Whereas reiterating the unwavering position of the President of the Republic, H.E. Ilir Meta that the functioning of the Constitutional Court is vital for the return of democracy and the rule of law in Albania, just as is the constitutional implementation of judicial reform, I believe it is necessary that public opinion is directly informed about the analysis and conclusions of the Venice Commission, free of any political interpretation.
In concrete terms, the Venice Commission has emphasized that:
I. The role of the Justice Appointments Council (JAC) was crucial in the process of Constitutional Court appointments.
II. The procedural incident in the process of constitutional court appointments was caused by the Chair of JAC.
III. Transparency is essential not only for the credibility of the appointments process but also for the Constitutional Court itself. JAC undermined transparency of the process through unconstitutional decisions.
IV. President’s actions safeguarded the constitutionality of the entire appointments process. The belated appointment of President’s second candidate is justifiable, as the purpose for activating the deblocking mechanism was not applicable, as long as there was neither malicious nor willful inaction on the part of the President. President’s refusal to accept the oath of the candidate allegedly appointed by default was reasonable.
V. The law adopted in Parliament changing the oath taking procedure in front of the President of the Republic is unconstitutional. Oath taking in front the President not only denotes the beginning of duty of a judge but also confirms the legitimacy of this constitutional mandate. Changing this procedure can only be done by changing the Constitution with a clearly formulated provision and only for clear cases of abuse. In current case, the Venice Commission does not find that there has been an abuse of office at any time.
VI. Renewal of the Constitutional Court is of vital importance for Albania, especially for the constitutionality of issues related to public interest. Inter-institutional dialogue and cooperation are essential for a broad consensus. Respect for the mandate and powers of state institutions is essential.
All of these are the exact conclusions of the Venice Commission on the process Constitutional Court appointments, as cited below, and are neither comments of the President nor of any benevolent commentator.
As regards concerns on impeachment of the President of the Republic, I also stress that current majority has asked twice for the opinion of the Venice Commission on this issue, on the grounds of allegedly serious violations of the Constitution. Both times Venice Commission has made it clear that Assembly’s claims have no legal basis to justify the impeachment of the President. The Commission has even warned the majority that even if it were to pursue this political goal, in the end it would have to decide “whether such impeachment would reduce or increase tensions and ultimately serve or frustrate the goal of mutual checks and balances in a situation where Parliament and all municipalities are dominated by one party.”
Regarding the issue of 15 conditions of the European Union, I would like to emphasize that it was the President who, even in this case, called for inclusive cooperation, and when lacking such cooperation warned with concern that there would be additional conditions, insisting that tangible and real progress is expected from Albania.
As a journalist for “DW”, you have revealed the clear position that Germany, the country that will soon take over the Presidency of the European Union, has taken vis a vis expectations of this process, of strategic importance for Albania.
President of the Republic, H.E. Ilir Meta is always keen to directly explain every issue, especially on facts that are of special public interest.
1. The role of the Justice Appointments Council (JAC) was crucial in the process of Constitutional Court appointments.
Paragraph 88 of the Opinion of the Venice Commission states:
“Due to the massive resignation or removal from office of the sitting members of the Constitutional Court in 2017 and 2018 (see paragraphs. 29 and 30 above), the need to proceed with their replacement under the new system materialised earlier and in more complex terms than envisaged in 2016. The role of the Justice Appointment Council (JAC) became crucial.”
2. The procedural incident in the process of constitutional court appointments was caused by the Chair of JAC.
Paragraph 92 of the Venice Commission Opinion states:
“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. The JAC formed four lists of candidates (two for the President and two for the Assembly) on 29.09.2019; it subsequently sent two lists to the President on 08.10.2019 and two lists to the Assembly on 14.10.2019. This caused a major procedural incident. In reply to the question by the delegation of the Venice Commission, why he sent the lists to the Assembly six days later than those sent to the President, the Chair of the JAC replied that the preparation of the full files that were sent together with the lists took longer. This modus operandi was not discussed in JAC. The Venice Commission is not in a position to examine whether the explanation given is plausible. In any case, it should have been clear that the date of sending out the lists would have important consequences because of the potential application of the appointment by default on the basis of the 30-days rule. Normally, according to Arts. 7/a to 7/c of the Law on the Constitutional Court, the JAC has to respect strict deadlines in the appointment process. However, since the JAC did not function in 2018, the initial deadlines had been missed.”
3. Transparency is essential not only for the credibility of the appointments process but also for the Constitutional Court itself. JAC undermined transparency of the process through unconstitutional decisions.
Paragraphs 90 and 91 of the Opinion of the Venice Commission state:
“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). Instead, pursuant to Rule 41 of JAC Decision no. 4 of 11.03.2019 on the Procedure for the Verification of Candidates for the Vacant Positions in the Constitutional Court and for High Justice Inspector, “[t]he discussions on the issue as well as the voting of the decision shall be made only in the presence of the members of the Council.”13 Rule 39 of the same JC decision gives the People’s Advocate only the possibility to give „opinions and evaluations regarding the mode of the procedure followed for the verification of the candidate”, that means not on the merits of the ranking. It seems that the JAC argued that the People’s Advocate might make public statements which could violate the secrecy of the JAC’s proceedings. This seems not justified as the People’s Advocate would also be bound by the secrecy as concerns individual cases; the People’s Advocate could instead make public comments on the functioning of the JAC in general. As the discussions are a central part of the „operations” of the JAC, it would seem that Rule 41 is contrary to the Constitution, the related legal provisions and the aim of ensuring public trust in the procedure conducted by the JAC. The Venice Commission recommends that the JAC changes this Rule for the upcoming candidates’ verification and selection procedures.”
“91. In addition, Article 226(2)(d) of Law no. 115/2016 on governance institutions of the justice system provides that the Chairperson of the Council shall ensure audio recordings of the meetings of the Council and that summaries of the minutes of the meetings of the Council are kept and published on the website of the High Court. However, it seems that the summaries of the meetings were not published in time. This is particularly regrettable because the People’s Advocate was excluded from the discussions pursuant to Rule 41. The Venice Commission recommends that the summaries of the minutes of the meetings of the JAC in 2020 be published in due time.”
4. President’s actions safeguarded the constitutionality of the entire appointments process. The belated appointment of President’s second candidate is justifiable, as the purpose for activating the deblocking mechanism was not applicable, as long as there was neither malicious nor willful inaction on the part of the President. President’s refusal to accept the oath of the candidate allegedly appointed by default was reasonable.
Paragraphs 96 and 98 of the Opinion of the Venice Commission state:
“96. However, the above model is based on the assumption that each procedure is autonomous: each appointing authority opens the vacancy and receives its own candidatures, which the JAC subsequently selects and ranks; as a result, each vacancy list should be autonomous from the others, and count at least three candidates (different from the three candidates of the lists of the other appointing authority). In the case in point, instead, as a result of a shortage of candidates (for all the reasons identified above), the lists for the President’s appointments and those for the Assembly’s appointments were made up largely of the same candidates. This amounted de facto to a pool of 6 candidates for four positions. In these conditions, as well as in view of the fact that overlapping procedures have not been explicitly regulated, it does not seem unreasonable for the President to deem to have to respect the order of the sequence also for the actual choice of the candidate: if the sequence exists, it must have a bearing on the order of appointment from a single list. Furthermore, in such a situation the appointment by one authority has a direct bearing on the appointments of the other authority as it changes the composition of the list of candidates at the disposal of the respective appointing body. 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. Reservations on account of this perspective do not seem unjustified. The President’s conduct in this respect does not therefore appear to justify his impeachment. 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. The President, by his Act of 5 November 2019, unilaterally suspended the appointment procedure before the expiry of the 30 days limit fixed by the law. While such suspension is not explicitly envisaged by the Law on the Constitutional Court, it could be consistent with a default mechanism meant to deblock a situation in case of malicious or wilful inaction on the part of one of the actors involved. If there is neither malicious nor wilful inaction, but rather a legal vacuum to be filled, the ratio legis of a default mechanism would not apply. As a consequence, there must be the possibility to interrupt the – otherwise automatic – functioning of the default mechanism. On the basis of a teleological interpretation of the legal provisions, it could therefore be justified to accept the belated appointment of a second candidate by the President. It therefore seems justified that the President refused to accept the oath of the judge allegedly appointed by default.”
5. The law adopted in Parliament changing the oath taking procedure in front of the President of the Republic is unconstitutional. Oath taking in front the President not only denotes the beginning of duty of a judge but also confirms the legitimacy of this constitutional mandate. Changing this procedure can only be done by changing the Constitution with a clearly formulated provision and only for clear cases of abuse. In current case, the Venice Commission does not find that there has been an abuse of office at any time.
Paragraphs 99 and 100 of the Opinion of the Venice Commission state:
“99. In this respect, 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). The corresponding legal basis of the oath ceremony can be found in Article 8 of Law No. 8577 of 10 February 2000 on the Organisation and Functioning of the Constitutional Court of the Republic of Albania, which reads: “1. The term of office of a judge of the Constitutional Court starts after he/she has been sworn in by the President of the Republic. […]”. 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. Referring to a previous Venice Commission recommendation in respect of Ukraine,15 on 12 February 2020 the Albanian Assembly adopted an amendment to the Law on the Constitutional Court that allows to send the oath in writing to the President when s/he refuses to accept the oath within 10 days after the “date of election, appointment or announcement of appointment”. 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. In addition, the adopted provision is very vague. What is the “announcement of appointment” and who is competent to make such an announcement? Even if it could be the Constitutional Court, the context of the situation in Albania excludes this possibility. Thus, the amendment creates uncertainty as to the legitimacy of members starting to work at the Constitutional Court without being sworn in on the basis of the procedure foreseen in the Constitution. If deemed necessary for avoiding a stalemate in clear cases of abuse, a more clearly formulated provision could be adopted at the constitutional level.”
6. Renewal of the Constitutional Court is of vital importance for Albania, especially for the constitutionality of issues related to public interest. Inter-institutional dialogue and cooperation are essential for a broad consensus. Respect for the mandate and powers of state institutions is essential.
Paragraphs 101 and 108 of the Venice Commission Opinion state:
“101. It is of vital importance for Albania to restore the Constitutional Court and the High Court as quickly as possible, even more so in a time in which highly complex questions pertaining to the constitutionality of public affairs in Albania present themselves. A number of cases pending at the Constitutional Court cannot be adjudicated. To overcome this crisis, constructive interinstitutional dialogue and cooperation between the State institutions are required and are essential to achieve a broad consensus.”
“108. Finally, the Venice Commission reiterates the absolute need for dialogue and loyal cooperation among state institutions. The mandate and powers of State institutions must be respected in order for them to fulfil their legitimate institutional objectives, always seeking the best benefit for the citizens of Albania. As the President of the Venice Commission recently insisted in respect of Armenia: “Democratic culture and maturity require institutional restraint, good faith and mutual respect between State institutions.”