republic of albania the president no. 315. prot...
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REPUBLIC OF ALBANIA
THE PRESIDENT
No. 315. Prot. Tirana, on 21.01.2020
Subject: Request for an opinion on the process of election of Constitutional Court members
in the Republic of Albania, providing a comprehensive evidence on the activities of
the President of the Republic, Parliament and the Justice Appointment Council.
To: Mr. Gianni BUQUICCHIO
PRESIDENT OF VENICE COMMISSION
STRASBOURG, FRANCE
In Attention to: RAPPORTEURS OF VENICE COMMISSION
Honorable Mr. Buquicchio,
Thank You for your personal commitment and the support of Venice Commission to strengthening
democracy and rule of law in Albania, for almost three decades.
I fully agree with your wise conclusions during 11 October 2019 Plenary Session, emphasizing that
the precious and generous assistance of the Venice Commission can neither cure nor replace the lack
of willingness and culture of cooperation among Albanian institutions.
Since the last Opinion of the Venice Commission invested by the Albanian Parliament, regrettably
there was no reflection as follow-up to your advice and recommendations.
Moreover, a non-functioning Constitutional Court for more than two years, a non-functioning
Supreme Court, a sui generis crisis of representation - with Government, Parliament, all
Municipalities and Municipal Councils in the hands of a single political force, including almost all
independent bodies, has effected in total disequilibrium of the check and balance mechanisms and to
the brink of total state capture.
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This context along with the unilateral and unconstitutional implementation of judicial reform, in
flagrant violation of early Venice Commission recommendations, is patently drowning the country
into unconstitutionality, illegality and towards autocracy.
Had Venice Commission recommendations, key to reaching unanimous consensus on 2016
Constitutional amendments, been properly implemented, the country would have not faced such sui
generis crisis.
It is regrettable that the main institution responsible for the distorted implementation of justice reform
is Parliament, now running under one party only.
Such compelling unilateral and non-cooperative approach continued also during the process of re-
establishing the Constitutional Court, in an attempt to hijack the constitutional powers of the President
of the Republic and consequently capture the highest Institution of Justice.
In July 2019, the Albanian Parliament requested an opinion from the Venice Commission, on the
powers of the President of the Republic regarding election date, in the framework of the Parliamentary
Investigation Commission set for the impeachment of the President of the Republic.
On 14 October 2019, the Venice Commission submitted its Opinion No 959/2019, noting in essence,
that the activity of the President does not fall within the scope of violations that may authorize an
impeachment of the President. Despite this recommendation, the Albanian Parliament
postponed twice the Investigation Commission deadline, seeking to continue its systematic pressure
against the President to nominate in the Constitutional Court the candidates who enjoyed political
support of the majority.
Parliament further expanded the scope of Parliamentary Investigation Commission and rebutted the
decision of the President of the Republic for his nomination of Constitutional Judges, vesting upon
themselves constitutional supremacy in the process of establishing the Constitutional Court.
Only two months after the Venice Commission Opinion, Parliament addresses again the Commission
on 30 December 2019, for another opinion. The obvious purpose of Parliament is to make another
effort to veiling their decision to impeach the President of the Republic with the logo of the Venice
Commission, and to ensure political capture also of the Constitutional Court.
The lack of willingness by the Albanian Parliament to cooperate with the President of the Republic
is evident and well documented also in this process. The Institution of the President of the Republic
learnt of Parliament’s request to the Venice Commission only through the media1.
1 The request of the Parliament to the Venice Commission is not published in the web page of the Parliament
until now.
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While examining the content of this Request, it can be deduced that Parliament’s account of facts and
circumstances is inaccurate with a subjective and superficial approach. Parliament’s substantially
twisted context and self-suggesting questions lead to a fake reading of the situation.
All this is done in bad faith, and to dishonestly push the Venice Commission towards cloudy
conclusions, to then be politically misused by the socialist majority.
The President of the Republic considers that the good faith of the Venice Commission, invested for
nearly 30 years to the benefit of the rule of law in Albania, cannot and should not be abused for
political goals of the day, but to benefit from the best experience of European Judicial practice.
In view of a serious unprecedented crisis, and while thousands of Albanian citizens are abandoning
the country due to violations of their fundamental freedoms and non-functioning of the rule of law, I
would like to bring to your kind attention that this Opinion of the Venice Commission will have a
direct impact on the course Albania is about to take, towards democracy or installation of dictatorship!
Honorable Mr. Buquicchio,
Aiming at an inclusive advisory process, the President of the Republic is presenting to the Venice
Commission a list of questions requiring an opinion regarding the constitutionality of actions of each
body involved in the process of reestablishing the Constitutional Court.
The questions are part of a comprehensive document with a true account of the process, based on
official facts that prove the full dimension of unconstitutional actions followed by the Albanian
Parliament, by the Chair of the Justice Appointment Council and other complicit institutions.
Assuring you of my highest consideration,
Sincerely,
Ilir Meta
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REPUBLIC OF ALBANIA
THE PRESIDENT
A. INFORMATION, OFFICIAL FACTS AND PROVES ON THE ACTIVITY OF THE
PRESIDENT OF THE REPUBLIC, THE ALBANIAN PARLIAMENT AND THE
JUSTICE APPOINTMENT COUNCIL ON THE PROCESS OF ELECTION OF
CONSTITUTIONAL COURT MEMBERS
AND
THE QUESTIONS OF THE PRESIDENT OF THE REPUBLIC FOR AN OPINION OF
THE VENICE COMMISSION OF THE ELECTION OF THE CONSTITUTIONAL
COURT2
I. Legal basis for the selection of the members of the Constitutional Court
The appointment of the Constitutional Court members, the procedure, completion of vacancies, the
renewal of its composition, the sequence of appointments, the appointing bodies entitled to appoint
or elect, and the authorized institution for the verification, evaluation, scoring and ranking of
candidates for the members of the Constitutional Court, are defined in the Constitution of the Republic
of Albania, Law No 8577/2000 "On the Organization and Functioning of the Constitutional Court",
as amended, Law No 115/2016 “On the Governance Bodies of the Justice System”, as amended.
The constitutional amendments endorsed in the context of judicial reform on 21 - 22 July 2016,
included detailed provisions on modus operandi to elect the members of the Constitutional Court
would be elected, as well as to re-composition of this Court.
The Constitution of the Republic, Article 125, para 1 and 2, stipulates that the Constitutional Court
consists of 9 members. 3 members are appointed by the President of the Republic, 3 members are
elected by Parliament and 3 members are elected by the Supreme Court. Members are selected among
candidates ranked in the top 3 of the list provided by Justice Appointments Council, according to
Law. Parliament elects a judge for the Constitutional Court by no less than 3/5 of all its members.
2 In the framework of the request of the Speaker of the Parliament of Albania to the Venice Commission,
4531 prot, date 30.12.2019.
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If Parliament fails to elect a judge within 30 days from the submission of JAC list, the candidate
ranked first in the list shall be considered appointed.
This constitutional amendment has been of particular importance, insofar as, in the same provision of
Article 179, para 2, 3 and 12, clearly specifies the period and the sequence of appointment/election
of the Court members:
“[…] 2. The first member to be replaced in the Constitutional Court shall be appointed by the
President of the Republic, the second shall be elected by Parliament and the third shall be appointed
by the Supreme Court. This shall be the sequence for all future appointments after the entry into
force of this law.
3. Aiming at the regular renewal of the Constitutional Court, the new judge who shall succeed the
judge whose mandate will end in 2017 shall remain in office until 2025 and the new judge who will
succeed the judge whose mandate will end in 2020 shall remain in office until 2028. The other
Constitutional Court judges shall be appointed for the entire duration of the mandate in accordance
with the law. [...]
12. The President of the Republic shall remain as Chairperson of the High Council of Justice until
the High Judicial Council is established within 8 months from the entry into force of this law. Upon
the establishment of the High Judicial Council, the President shall appoint the judges of the High
Court in accordance with Article 136 of the Constitution. The President of the Republic shall fill in
the first vacancy in the Constitutional Court under paragraph 2 of this Article and Article 125 of
the Constitution.”.
These constitutional amendments regarding modus operandi in the appointment/election of members,
including the sequence of each appointing body have been reinforced also in Articles 7, 7/a, 7/b and
86, para 4 of Law No 8577/2000, “On the Organization and Functioning of the Constitutional Court
of the Republic of Albania”, as amended, stipulating detailed provisions on how these prerequisites
shall be fulfilled.
The Law on the Constitutional Court in the abovementioned provisions, inter alia, stipulates that this
rule applies also in cases of termination of a mandate prior to term expiration of a Constitutional Court
member, also specifying the sequence of appointment for each vacancy created or to be created
thereof (Article 86, paragraph 4 of Law No 8577/2000).
Article 86, para 4, of Law No 8577/2000 also stipulates the modus operandi of reappointment of the
members of the Constitutional Court:
“4. The renewal of Constitutional Court judges until 2022, shall take place under the following
scheme:
a) The judges who will replace the judges whose mandate expires in 2016, shall be
appointed according to sequence, respectively by the President of the Republic and by Parliament.
b) The judge who will replace the judge whose mandate expires in 2017 shall be appointed by
the High Court and shall stay in office until 2025.
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c) The judges who will replace the judges whose mandate expires in 2019 shall be appointed
according to sequence, respectively by the President of the Republic and by Parliament.
ç) The judge who will replace the judge whose mandate expires in 2020, shall be appointed
by the High Court and shall stay in office until 2028.
d) The judges who will replace the judges whose mandate expires in 2022, shall be appointed
according to sequence, respectively by the President of the Republic, by Parliament, and by the High
Court.
The Constitution in Article 149/d provides that JAC checks the legal conditions and makes an
assessment of professional and moral criteria of the candidates for the High Justice Inspector, as well
as for the members of the Constitutional Court. JAC examines and ranks the candidates according to
their professional merits. The ranking of candidates is not binding, except for cases when it is not
possible to appoint a candidate.
JAC consists of 9 members selected by lottery, among judges and prosecutors who are not under
disciplinary measures. Between 1-5 December of each year, the President of the Republic selects by
lottery two judges from the Constitutional Court, one judge from the High Court, one prosecutor from
the General Prosecution Office, two judges and two prosecutors from the Courts of Appeal and one
judge from the Administrative Courts.
JAC serves a 1-year term beginning on 1 January of each calendar year. The Chair of JAC is a member
of the Supreme Court.
The organization and functioning of the JAC is stipulated in Articles 217-242 of Law No 115/2016
'On the Governing Bodies of the Justice System' as amended, including provisions of Law No 8480,
dated 27.05.1999 “On the functioning of the collegial bodies of the state administration and public
entities”.
JAC exercises its activity in a collegial manner, functioning therefore as a collegial administrative
body.
According to Article 229-230 of Law No 115/2016, JAC has the responsibility to endorse the rules
on organization and functioning of JAC, and more specific provisions on the selection and assessment
of candidates, including on the procedure for verification of their property, integrity, professional and
personal background.
The powers of JAC Chair are stipulated in Article 226 of Law no. 115/2016 as follows:
“Article 226
Chair
1. The member of the High Court is the chairperson of the Justice Appointments Council.
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2. The chair of the Council performs the following functions:
a) prepare, call and chair the Council meetings;
b) represent the Council in relation to third parties;
c) ensure administrative, organizational and financial support of the High Court for the functioning
of the Council;
ç) prepare and publish on High Court official website the Annual Report of JAC activities;
d) ensure that the Council meeting is recorded through the audio recording system and that a transcript
of Council meeting is kept and published on the website of the High Court. The meeting transcript is
presented to the members of the Council before it is published. If any of the members is not satisfied
with the accuracy of the meeting transcript, the chair of the council commands its comparison
juxtaposed to the audio recording and its due change if the claims of the member are correct;
dh) make sure to document the meeting of the council and maintain documentation in accordance
with the law on archives;
e) sign the acts of verification, assessment and ranking and forward them to the designated bodies.
ë) perform any other tasks assigned by law.”
According to Article 149/d of the Constitution and Article 233 of Law No 115/2016, the Ombudsman
participates as a permanent observer in JAC meetings and activities and drafts a report on JAC activity
and its election.
According to Article 233 of Law No 115/2016, representatives of the President of the Republic, of
the Speaker of Parliament, and 2 members of the permanent parliamentary commission for legal
affairs, one of whom from the opposition, are invited to participate in JAC meetings.
II. Obstruction of JAC for 2017-2018 immobilized the Constitutional Court
One of the most notable moments of the misuse of the Justice Reform was neutralization of the
Constitutional Court for more than 2 (two) years.
JAC functioning is key to replacing the vacancies for the Constitutional Court. JAC makes the
assessment, ranking and lists of the candidates for members of the Constitutional Court, and delivers
them to designated bodies (President, Assembly, Supreme Court) for respective appointments.
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Following the adoption of Constitutional Amendments (July 2016), the Assembly has organized the
lottery for 3 Justice Appointments Councils, in 2017, 2018, 2019, while JAC 2020 lottery was
organized the President of the Republic on 05.12.2019.
The two elected Councils (during 2017 and 2018) did not function, because they were deliberately
blocked by the Prime Minister and the representatives of the Socialist Party.
The President of the Republic has continuously denounced Prime Minister's efforts to keep
Government and Parliament outside of Constitutional control, as well as his attempts to politically
capture key institutions of the new judicial system.
On 27 January 2017, Parliament organized the lot in the most transparent way and elected for the first
time the Justice Appointments Council. This was the first key moment for the establishment of new
institutions of the Justice system after the Constitutional amendments.
No Judge or Prosecutor objected either the lists of the candidates participating in the lot for the
election of JAC, or the results of the lot.
But Prime Minister Rama, 4 days after the lot, expressed his public disapproval regarding JAC
members. On 31 January 2017, Prime Minister Rama, publicly threatened all JAC members, and
blackmailed them anticipating their expulsion through vetting. Prime Minister openly admitted that
he had the power not only to block the Council, but also to discharge them if he so wished.3 Following
this public pressure by the Prime Minister, the JAC members resigned. In addition, some JAC
members were discharged from the basic function by the vetting process.
Therefore, Prime Minister Rama attacked the very first new institution of the Justice Reform, only
because the members of Justice Appointments Council do not correspond to the political interests of
the Prime Minister. This Council was never gathered and its mandate expired on 31.12.2017,
without holding a single meeting.
If JAC 2017 were operational, the Constitutional Court vacancies would have been fulfilled. A
functional Constitutional Court would then be able to control the activity and decisions of the Prime
Minister, Government, Assembly and all the other institutions.
On 7 December 2017, the Assembly organized again the lot and elected the new Justice
Appointments Council for 2018. Again, the same problem repeated itself. The elected members
from the lot, again were disapproved by Prime Minister Rama and the Socialist Majority led by him.
3 Statement by the Prime Minister of Albania, Mr. Edi Rama, dated 31 January 2017, attacking members of
the JAC who were elected by lot: http://top-channel.tv/video/rama-kunder-ked-gjysma-ikin-nga-vettingu/
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The President of the Republic, on February 2018, formally requested JAC to meet and examine with
precedence all the candidacies submitted for all the vacancies for the Constitutional Court.
The President of the Republic, on February 2018, asked JAC to convene and exercise their
constitutional functions. However, the Chair of Legal Parliamentary Commission, Mr. Ulsi Manja,
on 5 March 2018, in a public statement4 asked JAC members to pass the vetting prior to commencing
their functioning for the assessment and ranking of the candidates for the Constitutional Court.
On 19 March 2018, the Chair of the Legal Parliamentary Commission, Mr. Ulsi Manja,
participated in the first and only 2018 JAC meeting. He used this appearance to publicly blackmail
JAC members. Mr. Manja insisted that JAC should gather for administrative activities, but not for
the assessment and ranking of candidates for the Constitutional Court5.
The Chair of the Legal Parliamentary Commission, Mr. Ulsi Manja demanded JAC members to not
exercise their function, with an alibi of a transitional provision whose deadline had already expired.
The commitment of Mr. Manja on the wetting process of the members of JAC, concerning the
exercising their function is contested as well by the Albanian member of the Venice Commission and
constitutional expert of the Judiciary Reform, Prof. Dr. Aurela Anastasi. 6
As a consequence, after 19 March 2018, JAC never gathered again.
Thus, the functioning of the Justice Appointments Council was blocked for another (one) year.
The Chair of Legal Parliamentary Commission, Mr. Ulsi Manja is also Chair of the Parliamentary
Investigative Committee established against the President of the Republic, which is now
investigating, among other things, the President's appointment of a member of the Constitutional
Court!
Prime Minister Rama and his parliamentary majority blackmailed the Justice Appointments Council
for two years, 2017 and 2018, and blocked the appointment of new Judges to the Constitutional
Court, while the vetting process was completely emptying the Constitutional Court.
4 Ulsi Manja public statement, 5 March 2018 in:
http://www.gsh.al/2018/03/05/ulsi-manja-per-anetaret-e-ked-ti-nenshtrohen-vetting-ut-para-se/
http://tv1-channel.tv/2018/03/05/ulsi-manjaanetaret-e-ked-duhet-ti-nenshtrohen-vettingut/
https://sot.com.al/politike/ulsi-manja-p%C3%ABr-an%C3%ABtar%C3%ABt-e-ked-nuk-ka-mbledhje-pa-
kaluar-vetting-un 5 Date 19.03.2018, Meeting of JAC, Transcript, page 10,
http://www.gjykataelarte.gov.al/ëeb/Procesverbali_i_mbledhjeve_184_1.php 6 Statement by the Venice Commission Member Ms. Aurela Anastasi on the vetting process of the JAC
members: https://www.tpz.al/2019/11/09/video-ulsi-manja-nuk-pyet-per-mendimin-e-eksperteve-si-po-
mbahet-peng-ked-del-dhe-kunder-fatmir-xhafajt/
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The Socialist Majority blocked the functioning of the Justice Appointments Council to avoid
the completion of the vacancies.
If JAC were operational during 2017 and 2018, the vacancies with the Constitutional Court would
have been completed one by one, according to the moment when they appeared.
If the Constitutional Court were functional, it would have examined 23 contested laws, adopted by
the Assembly, found in flagrant violation of the Constitution and seriously infringing the public
interest.
On 7 December 2018, the Assembly again organized the lot and elected the Provisional Justice
Appointments Council to function during 2019.
During this period, the number of the Supreme Court members was drastically reduced and during
the lot, only 3 Supreme Court Judges participated. Mr. Ardian Dvorani was elected as member of
JAC and Mr. Medi Bici as substitute member.
According to Law, the member of JAC elected by the Supreme Court is also the Chair of JAC. The
majority, this time, did not contest the names of JAC members because they succeeded to elect Mr.
Ardian Dvorani as the JAC Chair. Mr. Dvorani is a Judge well-known for his political sponsorship
and support from the Socialist majority.
The Justice Appointments Council functioned during 2019 with a limited number of members. JAC
started to operate with only 7 members, out of 9 required by the Constitution and ended its work with
5 members. 3 Judges (members of JAC) were subject to vetting while performing their JAC duties,
and one of them was dismissed.
Out of 3 JAC substitute members, two were also subject to vetting during the exercise of their duty,
and one of them was dismissed.
The Albanian Assembly did not undertake any initiative to establish a legal basis that would
allow to fill in vacancies created in JAC, although the President of the Republic had asked the
Assembly to do so since July 2018.
Surprisingly the Socialist Majority this time did not contest the fact that the third JAC (2019) started
to function, notwithstanding 3 out of 7 members were un-vetted Judges (contradicting their previous
approach to JAC 2017-2018).
The Chair of JAC, Ardian Dvorani, was elected as a Judge of the Supreme Court in February 2004,
when the Assembly was dominated by the Socialist Party.
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He continues to serve as a Judge in the Supreme Court for 16 years, notwithstanding Constitutional
deadline for a 9-year term.
During 2012, while a Supreme Court Judge, Dvorani participated in roundtables organized by the
Socialist Party, at that time in opposition, contributing to drafting the political program this political
force. This fact was reported by the media7, but at the time the rules on disciplinary accountability of
High Court Judges were not yet endorsed.
During 2016, the Assembly was examining the constitutional amendments in the context of the justice
system reform. Meanwhile, the Constitutional Court abrogated paragraph 3 of Article 5 of Law No
8588, dated 15.03.2000 “On the Organization and Functioning of the Supreme Court of the Republic
of Albania”, as amended, which allowed a Judge of the Supreme Court to remain in the office after
the termination of her/his term, until she/he will be substituted8.
Abrogation of this Article by the Constitutional Court had immediate effect to termination of Ardian
Dvorani term as a Supreme Court Judge.
However, Government blocked the publication of the Constitutional Court's decision in the Official
Gazette and until the constitutional amendments of the Justice Reform9 came into force. These
constitutional amendments included a provision according to which, Supreme Court Judges shall stay
in office past their 9-year term until they are substituted.
This new constitutional provision is valid only for the new appointments to the Supreme Court, i.e.
for the newly appointed members under the new constitutional regime. But despite of this clear
constitutional regulation and of the Constitutional Court ruling, the Supreme Court judge Ardian
Dvorani claimed that the new constitutional provision had an effect on his mandate.
By delaying publication in the Official Gazette of the Constitutional Court ruling, Ardian Dvorani
returned to office and continued serving as Supreme Court Judge, then elected as a member/Chair of
the Justice Appointments Council 2019.
7 See links: http://top-channel.tv/2011/10/30/tryeza-e-drejtesise-pd-propagande/
http://www.panorama.com.al/tryeza-e-ps-pd-vizioni-i-rames-i-mbrapshte/
https://www.youtube.com/watch?v=pjQdXk3ZJlw&app=desktop minuta 31.25 – 38.05
https://www.youtube.com/watch?v=gAd7z4var58 min 17.40 – 20.35 8See Decision of Constitutional Court No 55/2016 declared on 27.07.2016, and published in the Official
Gazette No 152, dated 12.08.2016 (entry in force in the same date). Delayed publishing in the Official Gazette
“coincided” with the entry in force of the constitutional amendments (11.08.2016). 9 Law No 76/2016 “On some additions and amendments of Law No 8417, dated 21.10.1998, “Constitution of
the Republic of Albania”, as amended, was promulgated by the Decree No 9706, dated 26.07.2016, published
in the Official Journal No 138, dated 27.07.2016 and entered into force on the date 11.08.2016.
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All facts related to political affiliation and influence ensuring extension of Ardian Dvorani’s mandate
as Supreme Court Judge, beyond reason and Constitutional requirements, taken separately or
together, infringe the legitimacy and credibility of the activity of JAC.
The activity of JAC Chair has been a showcase of returning political favors to the ruling
socialist majority. Inter alia, his deliberate distortion of constitutional sequence in delivering
the candidates lists for appointment, seeked to disable the President in exercising his
constitutional power and ensure control of the Constitutional Court by the socialist majority.
III. The problems created by the JAC 2019 by-laws
The restriction of Ombudsman’s participation in JAC activity.
JAC adopted 3 by-laws regulating: the organization and functioning; the verification of candidates;
the assessment and ranking of the remaining candidates in the competition.
By approving these acts, JAC has at some point exceeded the limits set by the Constitution and the
Law in regulating some essential issues of how to exercise its competences.
The Constitution in Article 149/d, 179/11 and Article 233 of Law No 115/2016 “On the Governing
Bodies of the Justice System” clearly defines the role of the Ombudsman as a subject participating in
the meetings and activities of JAC, as a permanent observer with an active guarantor role of respecting
the legal rights and freedoms of the individual during the all JAC activity.
With the approved by-laws, JAC decided that the discussions on different matters within JAC, as well
as the voting of Decisions, take place only in the presence of the Council Members, so limiting this
Constitutional right. JAC denied to the Ombudsman a right as stipulated in the Constitution and Law,
excluding it from monitoring the process of discussions and voting.
Even though these issues were raised at JAC meetings before and after the by-laws were approved,
there was no response or reflection on this matter.
Law No 8577/2000 “On the Organization and Functioning of the Constitutional Court”, as amended
by Articles 7/b, paragraph 3; 7/c, paragraph 4 and 7, states that if more than one vacancy exists, the
Council drafts two separate lists. One of the lists contains candidates coming from the judiciary, so
that JAC and then the appointing bodies can have objective possibilities to act in full compliance with
the norm, in order to ensure a balanced composition of the Constitutional Court among the magistrate
and non-magistrate candidates.
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Contrary to this legal requirement, JAC vested itself with the attributions of the legislator and
approved the By-law - Decision No 5, 02.04.2019, with a transitional provision (letter "ë" of the
Decision), suggesting that it will submit to appointing bodies a single final list of ranked candidates
for each vacancy.
So JAC, in contradiction to Law, forwarded to the appointing bodies (President, Assembly) one list
for each vacancy.
Regarding these and other matters, the Ombudsman filed a lawsuit in December 2019 to the
Administrative Court of Appeal, opposing all JAC By-laws mentioned above.
JAC's position on vetting of candidates, subject to Law No 84/2016.
JAC, in its by-law, Decision No 4, dated 11.03.2019 “On the procedure of verification of candidates
for the vacancies in the Constitutional Court and the High Justice Inspector”, decided that for
candidate Judges in the Constitutional Court and High Justice Inspector, the verification of meeting
the legal requirements for having successful passed the asset verification and the integrity check shall
be based on the decision issued by the Independent Qualification Commission (IQC) (first
instance) notwithstanding awaiting decision of the Special Appeal College.
According to this JAC act, a magistrate candidate who has successfully passed the first level of vetting
in IQC is allowed to run and is not subject to asset and integrity verification procedure provided for
in Articles 235 and 236 of the Law No 115/2016.
The JAC standard to consider only the first instance decision of the vetting bodies, i.e. the IQC,
without waiting for the decision of the Special Appeal College, could result that a winning candidate
for a vacancy in the Constitutional Court, after being appointed would still risk of being dismissed by
the Special Appeal College.
In this way, an early vacancy in the Constitutional Court would be recycled again, leading to a severe
infringement of public confidence about the new institutions of the justice system.
For this reason, the representative of the President of the Republic and the Ombudsman, asked JAC
to not approve this by-law, but JAC did not reflect upon this request. Consequently, JAC included in
its lists forwarded to the President of the Republic and the Albanian Assembly, in the list the
magistrate candidates who had not completed the transitional reassessment process by a final decision
(candidates Besnik Muçi and Regleta Panajoti).
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After the President of the Republic, on October 15th 2019, elected Mr. Besnik Muçi, as a Judge in the
Constitutional Court, it happened that the Special Appeal College was reactivated, and by its Decision
dated 21st of November 2019, decided to accept the complaint of the Public Commissioner and
dismiss Mr. Muçi, by creating again a premature vacancy in this court and delaying the process of
forming of a functional Constitutional Court for other several months.
Failure to transcript and publish the minutes of JAC Meetings
According to the provisions of Article 226, 232 of Law No 115/2016, but also in compliance with the
paragraph 17 of the decision of JAC No 1, dated 08.02.2019, the Chair of JAC has the responsibility
of ensuring the maintenance, administration, publication, consulting, approval and publishing on the
Supreme Court website the minutes of each Council meeting. The examination of the minutes should
be carried out at the next council meeting and the publication of their summary, in addition to being
a legal obligation, ensures the implementation of the principle of transparency.
During its 2019 activity, JAC held 39 (thirty-nine) meetings. Throughout 2019, JAC neither
examined, nor approved any transcripts in its meetings. All transcripts for every JAC meeting were
published and approved only in December 2019, at the end of JAC 2019 mandate.
On the Supreme Court's website, for one consecutive year, until 30th of December 2019, only the
minutes of the first JAC meeting were published, although the representative of the President and the
Ombudsman continuously requested during the JAC meetings the transcription of minutes.
The President of the Republic, on 19.11.2019, filed criminal charges against Chair of JAC to the
Special Prosecutor Office SPAK, accusing him of the criminal offense of "Abuse of Duty"10, provided
by Article 248 of the Criminal Code.
The Institution of the President of the Republic has published two video-spots which clarify all
constitutional and legal violations of JAC Chair related to appointment of Constitutional Court
members, in the following links:
http://president.al/en/spoti-pare-ne-mbrojtje-te-kushtetutes-dhe-integritetit-te-gjykates-kushtetuese/
http://president.al/en/spoti-dyte-ne-mbrojtje-te-kushtetutes-dhe-integritetit-te-gjykates-kushtetuese/
10 See Criminal Charges by the President of the Republic attached.
https://president.al/presidenti-meta-kallezon-penalisht-kryetarin-e-keshillit-te-emerimeve-ne-drejtesi-z-
ardian-dvorani/
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The Ombudsman, following its role as a Permanent Observer, has drafted a Report with the
preliminary findings on the activity of JAC 2019, noting the abovementioned issues and others related
to the malfunctioning of the JAC Chair and the JAC itself. This report is already public11.
IV. Announcing the vacancies in the Constitutional Court
The Constitutional Court was emptied, due to the non-functioning of 2017-2018 of the JAC. The only
Judge of the Constitutional Court in office, is Mrs. Vitore Tusha. Her mandate has expired since
March 2017, but according to Article 125/3 of the Constitution, she has chosen to remain in office
until her replacement. Her vacancy must be fulfilled by the High Court.
January 2019 found the Constitutional Court with 9 vacancies, which had already been published by
the appointing bodies (President, Assembly, Supreme Court) and inherited from 2018 Justice
Appointments Council.
More than 48 candidates applied for these vacancies, with a significant number applying for several
vacancies simultaneously.
According to JAC report for the three vacancies belonging to the Supreme Court, even after reopening
of application procedures on 19.04.2019, due to the lack of candidates, it was not possible to secure
a list with at least 3 candidates for these three vacancies.
In this way, JAC examined the files for completing only 6 vacancies in the Constitutional Court,
which belonged, 3 to the President of the Republic and 3 to the Assembly of Albania.
Within 2019, JAC was able to complete the verification, assessment and ranking of candidates for
only 4 full-time vacancies, with 37 potential candidates.
Two vacancies were created by the termination of the mandate of two former Judges Sokol Berberi
and Vladimir Kristo, whose term of office ended in 2016, with one vacancy belonging to the President
for the completion and one to the Assembly. Meanwhile, two other vacancies were created due to the
end of term of two former Judges, Altina Xhoxhaj and Bashkim Dedja, in May 2019, which again
belonged one to the President, and one to the Assembly.
JAC could not conclude the examination of candidacies for the other early vacancies belonging to the
President and the Assembly.
11 https://www.avokatipopullit.gov.al/sq/articles-layout-1/media/news/this-article-is-available-only-in-
albanian-238/
16
V. The procedures followed by JAC to verify the candidates for the Constitutional Court and
judicial processes.
The Judicial Appointments Council 2019, following the adoption of the bylaws in April 2019,
officially began the process of verifying, evaluating, scoring and ranking the candidates for all 6
vacancies to be filled by the President and the Assembly.
Within 2019, JAC was able to conclude the verification, evaluation and ranking of candidates for only
4 vacancies, where 37 candidates applied. During this process, 15 candidates withdrew their
application in the course of verification, whereas JAC decision disqualified 20 others.
Meanwhile, during June-July 2019, some candidates appealed JAC decisions to the Administrative
Court of Appeal, challenging their disqualification, claiming that JAC had unfairly disqualified them.
The Administrative Court of Appeal reviewing both JAC decisions for disqualifying a candidate from
running for two vacancies, concluded that some procedural actions and JAC assessments constitute
serious violation of the procedure determined by law, thus, resulting in an absolute invalidity
of JAC decisions. The Administrative Court of Appeal with the decision no. 201, dated
22.08.201912 decided to repeal both JAC decisions and to return the case to the Council for
reassessment.
On August 31, 2019 the President of the Republic with the document Prot. no. 2941/1, dated
31.08.2019 13, addressed JAC, requesting a rigorous implementation of the Constitution and of
the law, and requesting that the Council show great caution throughout its activity, as any
problem or shortcoming undermine the trust of the public, of the candidates, of the appointing
bodies, constituting at the same time a violation of the principle of a due legal process.
The President of the Republic, in the above letter, inter alia requests JAC that:
“This emergency situation subjectively created by the blocking and non-functioning of the Council
during 2017-2018, cannot tolerate the fact that the current JAC makes extensive and creative
interpretations for certain issues, beyond the powers provided by the Constitution and the law,
particularly when taking into consideration that the requests of the appointing bodies for filling the
vacancies date from February-March 2018.
12 The decision no.201 of the Court:
http://www.gjykataelarte.gov.al/web/vendim_nr_201_dt_22_08_2019_zhaklina_peto_2208.pdf 13 See attached the letter of the President of the Republic Prot. No. 2941/1 dated 31.08.2019 addressed to
JAC.
17
The Justice Appointments Council must comply with the requirements of the Constitution and of the
laws to assure the appointing bodies (President, Assembly, High Court), as well as all citizens of
the Republic of Albania that the candidates verified, qualified, evaluated and listed by the Council,
have the highest professional and moral qualities to be members of the Constitutional Court or the
High Justice Inspector.
The President of the Republic brings to the attention of the Justice Appointments Council that taking
into account the role and importance of the Constitutional Court in the proper functioning of the rule
of law, it is necessary that this important and unique body of constitutional law be functional as soon
as possible.
The President encourages the Justice Appointments Council to cooperate with the bodies assigned
by the law to accomplish at the earliest moment the fulfillment of the functional duties for the
verification, evaluation and scoring of candidates pursuant to the requirements of the Constitution
and the law, submitting the lists with the necessary number of candidates evaluated and ranked for
each vacancy to the Institution of the President of the Republic and to the Assembly of Albania, to
allow for the appointing bodies to elect in the shortest time possible the new members of the
Constitutional Court , so that this Court can function as soon as possible to make decisions and
resolve a number of issues that concern all social life in the country. "
VI. JAC procedures for evaluating, scoring and ranking the candidates.
In September, JAC completed the verification process of the candidates for 4 vacancies, and only 6
candidates were shortlisted, with most of them applying for all 4 vacancies simultaneously.
On 21.09.2019, JAC approved the final lists, the ranking of the candidates and the evaluation reports
for the eligible candidates applying for all the 4 (four) published vacancies, which are
appointed/elected by the appointing body of the President of the Republic and of the Assembly of
Albania through four different decisions provided as follows:
1. Decision no. 128 dated 21.09.2019 and decision no. 129, dated 21.09.2019 approving the Final
List, the Ranking of the Candidates and the Reasoned Report for the published vacancy to be
filled by the President of the Republic on the 07.02.2018.
2. Decision no. 130, dated 21.09.2019 and decision no. 131, dated 21.09.2019 approving the Final
List, the Ranking of the Candidates and the Reasoned Report for the published vacancy to be
filled by the Assembly of Albania on the 12.02.2018.
18
3. Decision no. 132, dated 21.09.2019 and decision no. 133, dated 21.09.2019 approving the Final
List, the Ranking of the Candidates and the Reasoned Report for the published vacancy to be
filled by the President of the Republic on the 04.03.2019.
4. Decision no. 134, dated 21.09.2019 and decision no. 135, dated 21.09.2019 approving the Final
List, the Ranking of the Candidates and the Reasoned Report for the published vacancy to be
filled by the Assembly of Albania on the 04.03.2018.
Pursuant to Law no. 115/2016, these decisions were published on the official website of the High
Court.
Referring to the numbering system of the decisions by JAC, it turns out that the Justice Appointments
Council as a collegial body has reviewed and made separate decisions for each published vacancy
and has approved the final ranking list for each vacancy published by the appointing bodies,
complying with the sequence to be followed for the appointment/election of new constitutional
judges provided for in Article 179, paragraph 2, 12 of the Constitution, Article 7 paragraph 2
and Article 86 paragraph 4 of the Law no. 8577 dated 10.02.2000 “On the organization and
functioning of the Constitutional Court of the Republic of Albania”, as amended.
The ranking of the candidates and the drafting of the 4 lists for both institutions - the President of the
Republic and the Assembly - were made by JAC on 21.09.2019, and the numbering of the decisions
is alternated according to the sequence provided for by the constitution and the law, and
according to the sequence of publishing and filling of the vacancies which are designated to the
President and the Assembly.
19
The ranking of candidates for each vacancy approved by JAC:
During this meeting (21.9.2019), the Representative of the President of the Republic requested
that JAC respect also the sequence of submitting the lists to each of the appointing bodies in
order not to create any difficulties or problems in this process.
Whereas the Ombudsman noted that with this limited number of candidates and with the same
names being repeated in each of the lists, JAC was predetermining the composition of the
Constitutional Court, and that the right of the appointing bodies to s/elect was being restricted.
VII. The unconstitutional and illegal procedure of submitting the lists to the appointing bodies
(President, Assembly) by JAC Chair.
JAC Chair submitted the lists of candidates to the President of the Republic for filling 2 (two)
vacancies simultaneously 14, document Prot. no. 552 and document Prot. no. 553 dated 8 October
2019.
14 For more information, see JAC Chair documents Prot. No. 552 dated 08.10.2019 and Prot. No. 553 dated
08.10.2019.
PRESIDENT
Vacancy published
for application
07 February 2018
ASSEMBLY
Vacancy
published for
application
12 February
2018
PRESIDENT
Vacancy published for
application
4 March 2019
ASSEMBLY
Vacancy published
for application
4 March 2019
CANDIDATES
RANKED BY JAC
CANDIDATES
RANKED BY
JAC
CANDIDATES
RANKED BY JAC
CANDIDATES
RANKED BY JAC
1. Arta Vorpsi
2. Elsa Toska
3. Besnik Muçi
4. Regleta Panajoti
1. Arta Vorpsi
2. Elsa Toska
3. Besnik Muçi
1. Arta Vorpsi
2. Fiona Papajorgj
3. Elsa Toska
4. Marsida Xhaferllari
1. Arta Vorpsi
2. Fiona Papajorgji
3. Elsa Toska
20
JAC has not taken any collegial decision to alter the time and manner of submitting the lists to
the appointing bodies. The administrative action of delivering the lists, different from what was
decided by JAC, is performed individually by the Chair of Justice Appointments Council, who
pursuant to Article 226 paragraph 2/e of Law no. 115/2016 may only sign the acts of verification,
assessment and ranking and submit them to the appointing bodies.
On 10 October 2019, the President of the Republic, given that the same applicants were on both lists,
on those submitted to the President as well as on those approved for the Assembly with the document
Prot. no. 3571 dated 10.10.201915, asked JAC Chair to provide further information of whether he
had submitted the lists of candidates for the two vacancies to the Assembly of Albania. The President
addressed JAC chair pursuant to the principle of constitutional loyalty (cooperation) and with the aim
of avoiding that the selection of the constitutional judge by him would affect the number of candidates
to be submitted to the Assembly. A possible selection by the President, without respecting the
Constitutional sequence of appointment, could theoretically lead, and de facto place the Assembly
under the conditions of practical impossibility to have the indispensable number of candidates to elect.
JAC Chair with the document Prot. No. 655 dated 14 October 2019, informed the President of the
Republic “today with the document Prot. No. 653 dated 14.10.2019 and with the document Prot. No.
654 dated 14.10.2019 has forwarded and submitted to the Assembly of the Republic of Albania the
Final Lists of Ranking of the Candidates and the Reasoned Reports for their Ranking for filling the 2
(two) vacancies simultaneously by the Assembly of the Republic” 16.
Thus, JAC Chairman, on 14 October 2019 (only 6 days after the submission of the lists to the
Institution of the President) performed the administrative process of submitting the lists to the
Assembly for filling both designated vacancies, simultaneously. In his response, JAC Chairman
did not provide any explanation why the two lists were submitted to the President simultaneously, or
of the reasons for the deliberate delay in submitting the two simultaneous lists to the Assembly, thus
with a one-week difference. These individual administrative actions of JAC Chair failed to comply
with both, the time and the sequence of drafting and approving the lists, and the mandatory sequence
of appointment set out by the Constitution and the law.
Therefore, according to JAC Chair the President would have to express himself within the 7 of
November 2019 for appointing two judges of the Constitutional Court simultaneously, prohibited
by the Constitution, pursuant to Article 179, paragraphs 2, 12 of the Constitution and Articles
7, 7/b and 86, paragraphs 4/a/c of Law no. 8577/2000.
15 For more information, see document Prot. No. 3571 dated 10.10.2019 of the Institution of the President of
the Republic. 16 For more information, see JAC Chair document Prot. No. 655 dated 14 October 2019.
21
Article 179 paragraphs 2 and 12 of the Constitution stipulates that:
“2. The first member to be replaced in the Constitutional Court shall be appointed by the President
of the Republic, the second shall be elected by the Assembly and the third shall be appointed by the
High Court. This shall be the order for all future appointments after the entry into force of this
law. […]
12. The President shall fill in the first vacancy in the Constitutional Court under paragraph 2 of
this Article and Article 125 of the Constitution.”
Pursuant to these provisions of the Constitution, the President of the Republic, cannot appoint
two judges simultaneously, or two judges one after the other, but only the first member,
meanwhile the second member of the Constitutional Court should be appointed by the
Assembly and the third by the High Court.
With regard to the case in question, the member to be appointed by the High Court to replace the
judge Ms. Vitore Tusha, whose mandate, according to the Constitution, has expired since March 2017,
who is still on duty waiting for her successor.
Each of the appointing bodies has a 30-day deadline to express themselves. With regard to the
Assembly, this deadline is provided for by Article 125 of the Constitution, whereas for the
President this deadline is only provided for by Law no. 8577/2000, Article 7/b, paragraph 4.
As of the moment of having submitted the lists, the legal deadline for the President had begun to run
simultaneously for both vacancies at the same time from 9.10.2019, and for the Assembly the
constitutional deadline had begun to run simultaneously for both vacancies from the date 15.10.2019.
Thus JAC Chair submitted the list of candidates to simultaneously fill the two vacancies pertaining
to the President of the Republic, seeking to place the President of the Republic under a situation of
constitutional impossibility and establish a state of fait accompli. The President would have to express
himself within the 30-day legal deadline also for 3rd appointment before the Assembly expressed itself
on the appointment of the second constitutional judge. This would constitute a direct violation of the
constitution by the President.
VIII. Appointment of the first Constitutional Judge by the President of the Republic.
The President of the Republic after having reviewed the practice and documents submitted by JAC
on the date 08.10.2019, and after ensuring that the Assembly administered the lists of candidates
submitted by JAC, fulfilled without any further delay his constitutional obligation for appointing the
first member of the Constitutional Court.
22
With the Decree no. 11313, dated 15.10.201917, Mr. Besnik Muçi, was appointed a member of the
Constitutional Court.
In the reasons attached to Decree no. 11313, dated 15.10.2019, the President of the Republic,
among other things, has stated that: “Having highly appreciated the role and importance of the
Constitutional Court in the proper functioning of the rule of law, the President of the Republic has
decided to express himself without further delay for the appointment of the candidate selected by him,
so that this decision be followed by a decision of the Assembly of Albania for the election of the
second member of the Constitutional Court, with the aim of having a functional Constitutional Court
as soon as possible, to make decisions and to provide a constitutional solution to a number of issues
that concern all social life in the country ”.
By this act, the President of the Republic, inter alia, pursuant to the principle of constitutional loyalty,
has requested the cooperation of the Assembly that the latter elect the second member of the Court,
for then the President to proceed with the election of the other member, according to the sequence
provided for by the constitution.
This Decree was published on the official website of the President of the Republic18, was available to
media, and was forwarded to the Chairman of the Assembly, to the Constitutional Court, to the
Ombudsman, to the High Council of Justice, to the High Prosecutorial Council, to the Judicial
Appointments Council, to the General Prosecution Office and to the Prosecution Office attached to
the First Instance Court of Serious Crimes with the document Prot. no. 3665 dated 16.10.2019. In
the meantime, immediately on the date 18.10.2019, the President of the Republic organized the
swearing in ceremony of this judge, inviting all the above-mentioned institutions and diplomatic
representatives19. Following this moment, judge Besnik Muçi began exercising his mandate.
IX. Decision of the President of the Republic to temporarily suspend the process of
administrative review of the list and of documentation for filling the vacancy for the
appointment of the judge of the Constitutional Court.
Following the appointment of the first constitutional judge, the President of the Republic has been
awaiting the decision of the Assembly of Albania for the election of the second member of the
Constitutional Court according to the sequence provided for by the Constitution Article 179,
paragraph 2, 12 and Law no. 8577/2000, Article 7/a, Article 86 paragraph 4.
This rule, stipulated by the Constitution and reinforced several times by Law of the Constitutional
Court no. 8577/2000, must be upheld not only by the relevant institutions (President, Assembly, High
17 For more information, see decree no. 11313, dated 15.10.2019 and the reasoning attached to this decree. 18 For more information see: https://president.al/presidenti-meta-dekreton-emerimin-e-zotit-besnik-muci-gjyqtar-te-
gjykates-kushtetuese/ 19 https://president.al/en/?s=besnik+muci+betohet
23
Court), but also by JAC Chair in the final stage of the process pertaining to the administrative
action of submitting the lists. This is due to the simple reason that the right of each appointing
institution needs indeed be exhausted within a 30-day period, however, this right can be exercised
only if there is no constitutional barrier to apply it.
With regard to the time of the submission of the lists by JAC Chair, the Assembly could choose (as
it did) to vote for the election of the second member of the Constitutional Court on 13 November
2019, which is the (30-day) deadline that Article 125, paragraph 2 of the Constitution defines as the
constitutional term.
Since the 30-day deadline for the President of the Republic is stipulated only by Article 7/b,
paragraph 4 of Law no. 8577/2000, abiding to the constitutional provision on the sequence of
appointment determined by the Constitution takes priority, as exhaustively clarified also by the
law itself.
The Assembly did not display any sign of cooperation, but continued until the final stage with
its anticipated scenario to express itself on the last deadline and placing the President under the
conditions of constitutional impossibility of appointing his member of the Constitutional Court,
according to the provision of the constitutional sequence.
Under these circumstances, the President examined the situation and concluded that reviewing
the merits of the proposals of the Justice Appointments Council for the other vacancy to be
filled by the President could not be accomplished at that time, as, under Article 179, paragraphs
2 and 12 of the Constitution, as well as Article 7, paragraph 2 and Article 86, paragraph 4/a/c of
Law no. 8577/2000, there was a situation of constitutional barrier because it was the turn of the
Assembly of the Albania to express itself for electing the second member of the Constitutional
Court.
If the President of the Republic were to act on the proposal of JAC Chairman (and not of JAC
collegial body) by appointing two judges simultaneously, he would directly violate two
provisions of the Constitution and some provisions of the Law on Constitutional Court. This
act would then legitimize the socialist majority accusing the President of violating the
Constitution.
At the same time, if the President had immediately elected two judges of the Constitutional
Court soon after administering the lists of JAC Chair, he would have substantially infringed
Assembly’s right to “elect”, as the lists of candidates for the Assembly would be reduced under
the minimum number of candidates provided for by the Constitution.
JAC Chairman, according to the scenario anticipated by the socialist majority to impose on the
President its predetermined candidates, deliberately failed to comply with these constitutional
24
provisions, and established the procedural set-up by submitting the lists to both Institutions at
different times merging the vacancies out of their sequence.
To the effect of preserving the constitutionality of the process and of exercising its constitutional right
to appoint a constitutional judge, the President of the Republic, pursuant to Articles 4, 92, 179,
paragraphs 2, 12 of the Constitution, Article 7 paragraphs 2, 7/b and Article 86 paragraph 4 of Law
no. 8577 dated 10.02.2000 “On the organization and functioning of the Constitutional Court of the
Republic of Albania”, Articles 66 and 44/2, letter “c” of Law no. 44/2015 “Code of Administrative
Procedures”, with its Administrative Act Prot. no. 3535/1 dated 05.11.201920, decided to:
Suspend the administrative process of reviewing the list and the documentation practice for filling
the vacancy in the Constitutional Court, full term vacancy, published by the President of the
Republic with Decree Prot. no.11133, dated 04.03.2019, submitted to JAC with the document
Prot. No. 553 dated 08.10.2019, until the election of the second member of the Constitutional
Court by the Assembly of Albania or until the expiry of the constitutional deadline, within which
the Assembly of Albania shall express itself for the election of the members of the Constitutional
Court for filling the two vacancies pertaining to it as an appointing body, and based on the
calculations, this deadline expires on the 13th of November 2019;
request that the Justice Appointment Council complete only the documentary practice and submit
within 5 (five) days a copy of the documentation administered and reviewed by JAC containing
the application file of each of the 4 (four) eligible candidates listed by JAC to fill the vacancy
published by the President with the Decree no.11133 dated 04.03.2019, for the purpose of
continuing the review;
request that the Assembly of Albania cooperate to consider the possibility of including for
deliberation in the plenary session, as soon as possible, the election of the second member of the
Constitutional Court, so that the President of the Republic shall exercise his power according to
the sequence provided for by the Constitution and Law no. 8577/2000.
This decision was immediately forwarded to the Chairman of the Assembly, to the Ombudsman
and to the Justice Appointments Council.
In the suspension act, the President of the Republic has clearly stated that in the capacity of the
appointing body, the President has full the willingness and will express himself to appoint the next
member of the Constitutional Court from the list of candidacies submitted by JAC. The public and
formal expression of the President’s willingness to appoint the constitutional judge with a decree and
the administrative act Prot. No. 3535/1 dated 05.11.2019, both consist in acts indicating that the anti-
blocking mechanism in this case, set out in Article 7/b, paragraph 4 of Law no. 8577/2000, is not
applicable. Both the spirit and the letter of the law make it clear that this mechanism can be applied
only in cases when the appointing body does not express itself, thus, chooses to remain silent.
20 For more information, see the administrative act of the President of the Republic Prot. No. 3535/1 dated
05.11.2019.
25
X. JAC’s meeting on the 7th of November 2019 about the decision of the President of the
Republic for the temporary administrative suspension of the examination of the list and for
the submission of complementary acts by JAC.
JAC Chairman after having been informed of the act, on the date 06 November 2019 announced that
JAC convene in a meeting on the date 07 November 2019, with the item on the agenda “Discussion
on the positions of the President of the Republic, in relation to the process of filling the vacancies in
the Constitutional Court”.
The representative of the President of the Republic, the Ombudsman and the representative of the
Speaker of the Albanian Assembly were present in this meeting, in addition to JAC members. The
members of the Council present at the meeting agreed that they could not comment on the content
of the letter of the President, reasoning that they had no authority to discuss the President’s
decision.
JAC members also agreed that the first interpreter of a constitutional power is the constitutional body
itself and every constitutional body makes an interpretation of the law or its power in a way or in
accordance with its own will without involving the other bodies.
JAC members also noted during the meeting that JAC has completed the evaluation, scoring and
ranking of candidates for each vacancy since 21st of September 2019, and that the submission of the
lists to the appointing bodies is the administrative activity of JAC Chairman and does not require a
decision taken by JAC.
The Ombudsman present at the meeting asked JAC Chairman of the reason why the lists were
submitted to the appointing bodies President-Assembly (two by two and with a 6- day difference from
each other), however, JAC Chairman did not answer. The Council, during its meeting of 7 November
2019, decided only to submit the additional documentation requested by the President.
The Justice Appointments Council, during the meeting of the 7th of November 2019, did not
discuss or take any decision on any other matter.
At this meeting, the representative of the President of the Republic once again informed the members
of JAC and the representatives of the Assembly, that the President has the willingness and will express
himself on the appointment of the member of the Constitutional Court to be filled by the President
of the Republic, without delay, once the Assembly expresses itself for the appointment of the member
of the Constitutional Court to fill the second vacancy in the Constitutional Court21.
21 See the summary of transcript of JAC meeting of the date 7.11.2019-
http://www.gjykataelarte.gov.al/web/Procesverbale_te_mbledhjeve_5601_1.php.
26
On the same date, following JAC meeting, JAC Chairman with the document Prot. No. 714 dated
07.11.2019 responded to the President, submitting the documentary practice administered and
examined by JAC for all the 4 (four) listed candidates to fill the vacancy by the President of the
Republic.
XI. Assigning the plenary session for the Assembly to vote the candidates of the Constitutional
Court
The Speaker of the Assembly of Albania, after being notified of the suspension act Prot. No. 3535/1
dated 05.11.2019 of the President pertaining to the temporary administrative suspension of examining
the list, and coincidentally on the same date of JAC meeting, 7th of November 2019, issued Order
No. 35, dated 07.11.2019 “For Convening the Assembly in a Plenary Session on the date 11.11.2019” 22.
The agenda of the plenary session of the 11th of November 2019 included also two draft resolutions
for electing the two members of the Constitutional Court with regard to the vacancies published by
the Assembly. According to this Act, it is noted that the Albanian Assembly did not respond to the
repeated requests of the President of the Republic to vote in the plenary session only the second
member, according to the sequence set by the Constitution, so that the President would then express
himself for the election of the subsequent member.
XII. The publication in the Official Gazette of JAC Decision No 132 dated 21.09.2019 in
contradiction with the Law.
On Saturday (a day-off), on the 9th of November 2019, the Decision of the Justice Appointments
Council no. 132 dated 21 September 2019 “On the approval of the final list of the ranking of
candidates applying for the vacancy, full term vacancy of judge in the Constitutional Court as
published by the President of the Republic on 04.03.2019” was published in the Official Gazette No.
15123.
This decision had been already published on 22nd of September 2019 on the website of the High Court,
following JAC collegial decision, paragraph 2, which states that: “This decision is published on the
official website of the High Court, under the section designated for the Justice Appointments
Council”; and as stipulated by Law No 115/2016 “On the Governance Bodies of the Justice System”,
Article 232 defining that “the acts of evaluation and ranking shall be published on the official website
of the High Court”.
22 https://www.parlament.al/Document?tipId=1&dokumentId=3764 23 Publishing or failure to publish in the Official Gazette in contravention with the Law has now become a
tradition by the Socialist Majority to accomplish political goals. We note that even in the case of the Head of
JAC Ardian Dvorani staying in office beyond the constitutional mandate was accomplished precisely by failing
to publish the decision of the Constitutional Court on time in the Official Gazette. The misuse of the Official
Gazette was also noted by the OSCE/ODIHR on its report for the election process of the 30th of June 2019.
27
Law No 78/2014 “On the organization and functioning of the Official Publication Center” and Law
No 115/2016 “On the Governance Bodies of the Justice System”, as amended, do not classify this
decision under those acts that can be published in the Official Gazette. Further, JAC did not take
any decision about the publication of the list for the vacancy published by the President of the
Republic in the Official Gazette.
The submission of this act to be published in the Official Gazette, by the Chair of JAC, Ardian
Dvorani, aimed at giving the fake impression that JAC had discussed this issue during its meeting on
the 7th of November 2019 and had decided to publish its Decision no. 132, dated 21 September 2019,
in the Official Gazette to the effect of the anti-blocking mechanism as provided by the Law. This was
another set-up by Ardian Dvorani. Neither did JAC in its meeting of 7th of November 2019 nor
in any other meeting take any decision of this nature or discuss the matter.
The President of the Republic, considering this act of the JAC Chair as an overt and intentional
violation of the Law, filed a Criminal Lawsuit against Mr. Ardian Dvorani, Head of JAC on 19
November 2019, currently under investigation by the Special Anticorruption Structure
(SPAK)24.
The publication in the Official Gazette by the Chair of JAC Dvorani in complicity with the Albanian
Government was premeditated and jointly organized. This act would then be used by the Assembly
at its plenary on 11 November 2019 to appoint a priori the predetermined candidate, Mrs. Arta Vorpsi
(also intentionally ranked first on all four lists) as a judge of the Constitutional Court, taking into
consideration that the 30-day legal deadline of the President to express himself had expired.
The Administrative Act of the President of the Republic Prot. No 3535/1 dated 05.11.2019, was
not challenged before any Court by any of the parties involved in the process or by any of the
stakeholders.
XIII. The Constitutional violations of the Albanian Assembly in the process of selecting two
members of the Constitutional Court.
The Assembly of Albania convened in a plenary session on the date 11 November 2019 at 10:00 hrs.
In accordance with the adopted agenda of the plenary session, the two draft resolutions were also
included for the election of the two members of the Constitutional Court, for the vacancies
published by the Assembly.
24See attached the criminal lawsuit submitted to SPAK Prosecution.
https://president.al/presidenti-meta-kallezon-penalisht-kryetarin-e-keshillit-te-emerimeve-ne-drejtesi-z-
ardian-dvorani/
28
The list of Candidates that the Assembly had at its disposal to elect
When the Assembly was heading towards voting two members of the Constitutional Court
simultaneously, in violation on provisions of the Constitution and Law No 8577/2000, the President
of the Republic once more, pursuant to Article 92, letter “a” of the Constitution, addressed a public
message to the members of the parliament one hour before the plenary session, requesting once more
that the members of the parliament cooperate to uphold and preserve the constitutionality of the whole
process. The President's message to the Assembly was as follows25:
“Dear Members of the Parliament,
Today is a very important day to show responsibility for Albania’s European future!
You know that the establishment of the Constitutional Court is one of the nine main conditions
of Bundestag for the opening accession negotiations with the European Union.
The Constitution has clearly defined the sequence of the appointments for the members of the
Constitutional Court!
The President of the Republic elected immediately its first member!
It is now the turn of the Assembly to elect the second member, nevertheless with delay!
The President is following closely this process and shall express himself immediately within
24 hours to elect the third member, once the Assembly has expressed its will.
Thus, please, take five minutes to read Article 179, paragraphs 2 and 12 of the Constitution and
Article 86, paragraph 4/a/c of Law on the Constitutional Court, and act without wasting any
time!
25 https://www.facebook.com/ilirmetazyrtar/posts/2601856493193941
https://www.rtsh.al/lajme/presidenti-meta-u-ben-thirrje-deputeteve-te-zgjedhin-anetarin-e-dyte-te-gjykates-
kushtetuese/
https://ata.gov.al/2019/11/11/zgjedhja-e-anetarit-te-kushtetueses-meta-thirrje-deputeteve-dite-teper-e-
rendesishme/
https://360grade.al/308490/presidenti-meta-thirrje-deputeteve-po-e-ndjek-me-vemendje-lexoni-keto-nene-
dhe-veproni-pa-humbur-kohe-sa-per-marifetet-e/
https://politiko.al/perplasja-per-anetaret-e-kushtueses-meta-thirrje-deputeteve-para-seances-gjeni-5-minuta-
kohe-lexoni-ligjin/
ASSEMBLY
Vacancy published for application
February 12, 2018
ASSEMBLY
Vacancy published for application
March 4, 2019
RANKING RANKING
1. Arta Vorpsi
2. Elsa Toska
3. Besnik Muçi
(Mr. Muçi had lost his eligibility as a
candidate because he was elected
judge of the CC, by the President,
since October 15, 2019)
1. Arta Vorpsi
2. Fiona Papajorgji
3. Elsa Toska
29
The tricks of those blind political supporters in the justice system and the illegal publications in
the Official Gazette, will be unveiled to you and the public a little later, along with the non-
transcribed meetings of JAC!!!”
The Assembly showed once more no will for cooperation with the President. On the contrary,
members of the Albanian Parliament articulated in their discussions that the first-listed candidate on
both lists of the Assembly and of the President, was considered as elected a priori and that the anti-
blocking mechanism had worked. With this argument, the Assembly of Albania, during the plenary
session, unjustly excluded Ms. Arta Vorpsi from the voting process of the candidate for member of
the Constitutional Court.
Her exclusion from the voting process, without any decision of the Assembly, constitutes a serious
violation of this candidate’s fundamental human rights and freedoms, as she was unjustly denied by
the Chair of JAC and the Assembly to participate in a race she was eligible to, pursuant to the
Constitution. The Assembly of Albania, contrary to any Constitutional norm, and by exceeding its
powers, considered Ms. Arta Vorpsi a priori elected for the vacancy pertaining to the President of the
Republic, although the Assembly in its practice had administered and was familiar with the
Administrative Act Prot. No 3535/1dated 05.11.2019 of the President on the suspension of the
process.
This action of the Assembly constitutes a violation of the Constitution, aiming at hijacking a
member of the Constitutional Court designated for appointment to the President of the
Republic.
The Assembly, in the Plenary Session of 11 November 2019, continued the voting process with only
one candidate. With the Decision No. 133 dated 11.11.2019, Ms. Elsa Toska was elected a member
of the Constitutional Court, as the only remaining candidate in the competition for the vacancy
published by the Assembly on 12.02.2018. This appointment is carried out in violation of Article 125
of the Constitution, which determines that the members of the Constitutional Court are selected from
among the candidates listed in the first three places on the list. Whereas, the appointment of a single
candidate does not imply any selection process in terms of constitutional requirements.
Following this, the Assembly of Albania immediately continued with the voting process for the other
vacancy, and in its consideration, there was again only one candidate left. On the basis of its
deliberation, the Assembly considered Ms. Arta Vorpsi as elected, meanwhile Ms. Elsa Toska,
elected in its first vacancy, lost her candidate status. Therefore, with the Decision No. 134, dated
11.11.2019 the Assembly elected Ms. Fiona Papajorgji as member of the Constitutional Court to fill
the vacancy published by the Assembly on 04.03.2019, as the only candidate remaining in the
competition.
Therefore:
30
The Assembly of Albania voted simultaneously in the plenary session two members of the
Constitutional Court for the two vacancies, in contradiction with the defined order breaching the
provisions of Article 179 paragraph 2, 12 of the Constitution and Articles 7 and 86 paragraph
4/a/c of Law No 8577/2000;
The Assembly of Albania, with its a priori assessments on the number and status of candidates in
the administered lists, posed a problem since it unjustly denied the candidate Arta Vorpsi of the right
to be voted, to compete freely and to be elected;
The Assembly elected the members of the Constitutional Court under the conditions, where for each
of the vacancy, in its consideration there was only one valid candidate for selection, in
contravention with Article 125 of the Constitution and Law No 8577/2000;
The Assembly has also impaired the possibility of the President of the Republic to elect, by reducing
the number of candidates as stipulated by the Constitution, from 3 to 2 candidates, with the
simultaneous voting of the two candidates and their election as judge of the Constitutional Court;
The Assembly, by means of its action, lost the chance to help the Constitutional Court maintain its
integrity, even though the President of the Republic repeatedly called on it;
The Assembly once again did not show any sign of cooperation towards the Institution and the
request of the President, even though it was requested in writing and through public messages of the
President, under the conditions when this cooperation was important, since the candidates on the lists
of both institutions comprised almost the same names;
The Assembly’s a priori assessment, that the 30-day legal deadline of the President to select a
candidate had expired, was not based on the Constitution. The Constitution, unlike for the
Assembly, does not foresee any binding deadline for the President of the Republic to express
himself.
XIV. The appointment of the other Judge by the President of the Republic for the vacancy
published by him on the 4th of March 2019.
After the Assembly expressed itself on 11.11.2019, by appointing two constitutional judges, the
President ascertained that the condition of suspension did not exist any longer, and therefore
continued with the examination of the practice to express himself on the appointment of the
Constitutional Judge, a vacancy published by the President on 04.03.2019.
Following the election of Ms. Elsa Toska and Ms. Fiona Papajorgji as Judges of the Constitutional
Court by the Assembly in contradiction with the sequence determined by the Constitution, with regard
to the vacancy pertaining to the President, only 2 (two) candidates remained in the competition to fill
the vacancy, respectively Arta Vorpsi and Marsida Xhaferllari.
The President of the Republic, with the Decree No. 11350 dated 13.11.2019, appointed Mrs. Marsida
Xhaferllari as Judge of the Constitutional Court. This Decree is accompanied with the reasoning26 for
the selection of this candidate and the procedure followed to fill this vacancy. These acts were
26See Decree No. 11350 dated 13.11.2019 of the President of the Republic and his reasoning.
31
published on the official website of the Institution of the President of the Republic27 and through the
public information media.
The selection of this candidate was to the effect and complying with the Constitutional provision of
Article 125, paragraph 1 and the provision of Article 149/d, paragraph 1 of the Constitution28. The
last sentence of this paragraph foresees that “The ranking of candidates is not binding, except for
the case when the candidate is not appointed.” This means that the list, in terms of the three names
that it must have, is not necessarily rigid. It can be completed with the subsequent candidates in
those cases when one or more candidates from the upper 3 levels are no longer candidates for various
reasons.
If otherwise, the Constitution would not have this provision, and could even assert that the list is a
closed one and that the appointment/election should only be made from the 3 candidates in the
list during the initial phase; or it could foresee that the decision-making authority (the
appointing body) should be provided with the names of the first three candidates, while the
other candidates are not submitted to the decision-making authority.
Article 125, paragraph 1 of the Constitution provides that the list submitted by JAC may contain the
names of more than 3 candidates, but the appointment/election may be carried out only among the 3
candidates listed on the top. The list is “rigid” only in one case, if the designated authority decides to
remain silent within the 30-day deadline. Even in this case, the “rigidity” of the list refers only to the
candidate ranked first by JAC. Therefore, the decision-making authority will have no right to
hierarchically rearrange the first 3 candidates, as this would undermine the anti-blocking mechanism
set out in the Constitution (the first ranked is considered as appointed in the event of silence).
With reference to the above provisions, it must be noted that the President of the Republic encountered
this situation caused by JAC and followed by the decision-making of the Assembly on 11.11.2019,
where there were only 2 (two) candidates, and one of them was to be appointed judge of the
Constitutional Court.
While assessing objectively the whole situation created as a result of the actions of the other bodies
(JAC Chair-Assembly), which undermined the sequence of appointment of the Constitutional Judges,
the President of the Republic finally decided to proceed with these number of candidates for the
election of the Constitutional Judge for the vacancy published by him, since there was the possibility
to elect a suitable candidate as member of the Constitutional Court. Even though the Constitution and
the Law requires minimum 3 candidacies, the President of the Republic considered that in this case,
27 See : https://president.al/presidenti-meta-dekreton-emerimin-e-znj-marsida-xhaferllari-gjyqtare-te-gjykates-
kushtetuese-2/ 28 Article 149/d paragraph 1 of the Constitution: “The Justice Appointments Council is responsible for
verifying the fulfillment of legal requirements and assessment of professional and moral criteria of the
candidates for the High Justice Inspector, as well as for the members of the Constitutional Court. The Justice
Appointments Council examines and ranks the candidates according to their professional merits. The ranking
of candidates is not binding, except when a candidate fails to be appointed.”
32
the presence of 2 (two) alternatives ensured the essence of the right to elect and that the spirit of the
Constitution was preserved. As for the President of the Republic, the discretionary space of assessing
between more than one candidate was ensured; otherwise it would have been an automatic
appointment, thus, the right to appoint would be assumed by another body which does not have this
constitutional power.
For the above reasons, he considered to act with the selection of Mrs. Marsida Xhaferllari to be a
member of the Constitutional Court, who, inter alia, had shown high integrity, being the only one of
the 6 candidates in the race to have applied for only 1 vacancy out of 6 (six) vacancies published for
application by the appointing bodies (President, Assembly) and which were examined by JAC. With
the document Prot. No. 4237 dated 13.11.2019, the Institution of the President of the Republic notified
the Assembly, the Constitutional Court, the Ombudsman, the High Judicial Council, the High
Prosecutorial Council and JAC on the appointment of Mrs. Marsida Xhaferllari as a member of the
Constitutional Court.
XV. The new Constitutional Judges elected by the President and the Assembly swearing in as a
condition prior to the commencement of exercising the mandate.
Article 129 of the Constitution foresees that the Judge of the Constitutional Court starts the
duty after taking the oath in front of the President of the Republic.
On the 14th of November 2019, the President of the Republic administered the official publication
and Acts of appointment by the Assembly of Ms. Elsa Toska and Fiona Papajogji as members of the
Constitutional Court. Immediately following this publication, the President of the Republic, with the
document Prot. No. 4312/1 dated 14.11.2019, notified the respective institutions and published
through the public information media the organization of the swearing in ceremony of the new Judges
of the Constitutional Court, Elsa Toska, Marsida Xhaferllari and Fiona Papajorgji29, to take the oath
respectively on the date 14.11.2019, at the following times:
1. Ms. Elsa Toska, at 19:00 hrs.;
2. Ms. Marsida Xhaferllari at 19:30 hrs.;
3. Ms. Fiona Papajorgji, at 20:00 hrs.
The members of the Constitutional Court Mrs. Vitore Tusha and Mr. Besnik Muçi and the members
of the Constitutional Court30, who had already taken the oath, participated in the swearing in
ceremony.
29 https://president.al/njoftim-mbi-organizimin-e-ceremonise-se-betimit-te-gjyqtareve-te-rinj-te-gjykates-
kushtetuese/ 30https://president.al/betohet-para-presidentit-te-republikes-anetarja-e-re-e-gjykates-kushtetuese-znj-elsa-
toska/
33
The notification of the oath taking ceremony was immediately and officially forwarded to the
Assembly of Albania and to the Constitutional Court, with the document Prot. No. 4313/1 dated
14.11.2019. In this way, after having fulfilled the last condition foreseen by Article 129 of the
Constitution for the commencement of the duty, the oath taking before the President of the Republic,
the new members of the Constitutional Court started their duty.
Currently, 4 members of the Constitutional Court, Mrs. Vitore Tusha, Mrs. Elsa Toska, Mrs. Marsida
Xhaferllari and Ms. Fiona Papajorgji, have immediately started exercising their mandate by reviewing
cases in preliminary colleges (year 2019-2020) and making decisions on whether or not to adjudicate
claims administered by this court31.
XVI. The behavior of the candidate Arta Vorpsi.
Following the appointment of Mrs. Marsida Xhaferllari as a member of the Constitutional Court by
the President with the Decree No. 11350 dated 13.11.2019 and following the publication of his
decision, the other candidate, Mrs. Arta Vorpsi, signed a personal statement before a Notary on
13.11.2019, claiming to swear in office.
This personal statement is a unilateral and unsolicited act coming from an entity/individual who was
not considered to meet any of the conditions or criteria impelling that such an action take place.
Mrs. Arta Vorpsi has been considered as a candidate by the President of the Republic in the vacancy
pertaining to him, but she was selected neither by him nor the Albanian Assembly, nor has she been
declared by any decision as elected/appointed judge of the Constitutional Court.
This immature, unprofessional and unconstitutional act by Mrs. Arta Vorpsi confirmed once again
that this candidate lacked professional skills, integrity and professional impartiality to be elected as a
member of the Constitutional Court.
Article 129 of the Constitution foresees clearly that the Judge of the Constitutional Court starts
the duty after taking the oath only in front of the President of the Republic.
XVII. Resolution of the Assembly of Albania immediately following the oath taking of the
Constitutional Judges.
https://president.al/betohet-para-presidentit-te-republikes-anetarja-e-re-e-gjykates-kushtetuese-znj-marsida-
xhaferllari/
https://president.al/betohet-para-presidentit-te-republikes-anetarja-e-re-e-gjykates-kushtetuese-znj-fiona-
papajorgji/ 31 http://www.gjk.gov.al/web/Vendime_moskalimi_te_ceshtjeve_ne_seance_gjyqesore_101_1.php
http://www.gjk.gov.al/web/Vendime_moskalimi_te_ceshtjeve_ne_seance_gjyqesore_101_1.php
34
As soon as the Constitutional Judges commenced their duty, the Assembly started a process of
antagonizing the actions and decisions of the President of the Republic, in order to prevent the Judge
appointed by the President of the Republic from exercising her duties.
On the 15th of November 2019 (the day after swearing in office), the Assembly adopted a resolution
stating inter alia that: “The Albanian Assembly first calls on the Constitutional Court to assume the
responsibility of the authority subject only to the Constitution, to not allow the institutional
delegitimization since it commences its activity, but to implement the constitutional order of the
ranking set by the decision of the Judicial Appointments Council, which defines Mrs. Arta Vorpsi
as appointed Judge of the Constitutional Court.
Any other attempt or action, to the effect of implementing the Decree of the President of the Republic
No. 11350 dated 13.11.2019, on the appointment of Mrs. Marsida Xhaferllari as Judge of the
Constitutional Court and which is considered to be in overt and flagrant contravention with the
Constitution and the law, makes anyone, who dares to take this action with serious consequences for
the functioning of the rule of law, responsible.
The Assembly of Albania calls upon the Constitutional Court and upon other bodies to carry out their
duties responsibly, without posing any obstacles for the commencement of the duty of the
Constitutional Judges Mrs. Arta Vorpsi, Mrs. Elsa Toska and Mrs. Fiona Papajorgji appointed
legitimately under the Constitutional procedure, which was followed for this purpose by the Judicial
Appointments Council and the Assembly of Albania.
The Assembly of Albania, in the context of avoiding any attempt to block the Justice Reform, is
committed to reviewing the legislation to avoid the arising in the future of situations, which impede
abusively the functioning of the constitutional bodies of the country.”
Based on the content of this resolution, the purely political position of the Socialist majority to seize
the Constitutional Court is observed and to seize from the President of the Republic the appointment
of a member, from his constitutional right to choose. This resolution also proves that the majority
would pursue all forms that allow by all means and conditions to impose Mrs. Arta Vorpsi, as a Judge
in the Constitutional Court.
XVIII. Fulfillment of a legal obligation by the President of the Republic to Report the criminal
offences committed personally by Mr. Ardian Dvorani in the position of Head of JAC, for
exceeding and failing to perform duly his duties as Head of JAC.
35
Pursuant to Article 281 of the Criminal Procedure Code, the President of the Republic with the act
Prot. No. 4350 dated 19.11.201932 filed a criminal report with the prosecution body with a view to
initiating an investigation against Mr. Ardian Dvorani for the criminal offences of “Abuse of office”,
provided for by Article 248 of the Criminal Code and “Appropriating a public title or office”,
provided for by Article 246 of the Criminal Code33.
This is due to the fact that considering the entirety of all the circumstances, it is deemed that
during the term of office as Chair of JAC, he has deliberately abused the public office he was
assigned and undertook to carry out.
The criminal facts for which Mr. Dvorani was reported were repeated more than once and were
committed with direct intent. Specifically:
The Chair of JAC, through his personal administrative actions submitted the lists to the appointing
bodies (President and Assembly) two –by-two and with a time difference, which failed to comply
with the time of compilation and approval of the lists, with the sequence in which they were
approved, and the binding sequence provided for by the Constitution and Law for the filling of
vacancies.
In order to protect the entire process of appointing/electing the members of the Constitutional
Court and to comply with the sequence of their appointment, the Chair of JAC, during the final
stage of submitting the final lists, by all means, had to take into account and comply with the
requirements of the Constitution and Law.
JAC did not take any collegial decision on the manner and the time of the submission of the
lists to the appointing bodies. This administrative action was carried out individually only
by the Chair of JAC, who pursuant to Article 226 paragraph 2/e of Law No 115/2016, has the
only function of signing the acts of verification, evaluation and ranking and submitting them to
the appointing body, without interfering or changing the decision of JAC.
The Chair of JAC, Mr. Ardian Dvorani, merely by drafting and signing under his name an
administrative document, which was submitting two lists of candidates for two vacancies
simultaneously, has made a serious violation of the Law, and provoked the President of the
Republic to impose a “new rule” so that he would overtly infringe the Constitution and the
sequence of appointment of the new members of the Constitutional Court.
Submitting for publication in the Official Gazette of the Decision of the Justice Appointments
Council No. 132 dated 21 September 2019, is another punitive act committed by the Head of JAC.
Failure to transcribe and publish for one year the minutes of the meetings of the Justice
Appointments Council, in contravention with Articles 226, 232 of Law No 115/2016 and
paragraph 17 of the Regulation of JAC, consist another criminal fact committed by the Head of
JAC, of which he has been reported by the President of the Republic.
32 For more information, see the Criminal Report submitted by the President of the Republic with the
document Prot. No. 4350 dated 19.11.2019 to SPAK Prosecution. 33 https://president.al/presidenti-meta-kallezon-penalisht-kryetarin-e-keshillit-te-emerimeve-ne-drejtesi-z-
ardian-dvorani/
36
The President presented himself in person to the Prosecution Office and has provided explanations
and additional details in relation to the report filed. Afterwards, the prosecution has summoned the
accused Ardian Dvoranit to provide an explanation, including questioning of the Ombudsman, and of
some of JAC members. This criminal report is currently under investigation by the Special Anti-
Corruption Prosecution (SPAK).
XIX. The activity of the Assembly supporting the Chair of JAC, Ardian Dvorani.
As soon as the President of the Republic filed a criminal report and published the details observed
during the illegal activity of the Head of JAC, the Parliamentary Group of the Socialist Party
immediately invested themselves in providing Ardian Dvorani with political protection for his
actions.
The Socialist Parliamentary Group, on 21 November 2019 (two days following the submission and
publication of the criminal report by the President) submitted to the Assembly a request to expand
the scope of the Parliamentary Investigative Commission “On scrutinizing the legitimacy of the
actions carried out by the President of the Republic in the context of exercising his powers with regard
to setting the date of elections for the local government bodies”.
On the basis of this request the Assembly of Albania with Decision No.140 dated 05.12.2019 decided
to expand the scope of the activity of the Investigative Commission, to extend its deadline with 4
more months and to include in the subject: “On scrutinizing the legitimacy of the actions carried out
by the President of the Republic in the context of exercising his powers with regard to the holding of
elections for the local government bodies and on scrutinizing the legitimacy of the actions and
procedures followed by the President of the Republic in the context of the appointment of
Constitutional Judges”.
In relation to the activity and the initial scope of the Parliamentary Investigative Commission, the
Venice Commission has already issued Opinion No 959/2019, dated October 14, 201934. Even
though it was expected that the Assembly would conclude on the scope of Parliamentary
Investigative Commission following the advice of the Venice Commission Opinion, the Assembly
did the opposite.
XX. Legislative initiative of the Assembly to amend the Law on the Constitutional Court.
With a view to legitimizing the notarial statement of the candidate Arta Vorpsi and to certify it as an
act of swearing in office as a Constitutional Judge, the Socialist majority officially launched a new
legal initiative35. Three members of the Socialist Parliamentary Group, also members of the
34 See attached the Final Opinion of the Venice Commission No 959/2019 dated 14 October 2019. 35 https://www.parlament.al/ProjektLigje/ProjektLigjeDetails/51305
37
Parliamentary Investigative Commission, submitted to the Assembly a legal initiative, which seeks
to infringe the Constitutional provision of swearing in office to the President of the Republic,
providing a retroactive effect to private swearing in office, outside the President’s office.
The Draft Law “On some additions and amendments to Law No 8577 dated 10.02.2000, “On the
Organization and Functioning of the Constitutional Court”, as amended, was submitted to the
Assembly on the 6th of December 2019. It is obvious that the socialist majority is determined to further
frustrate the balance of the Constitutional Court, and ensure its capture at all costs.
XXI. The sui generis crisis of representation of the Albanian Assembly.
Strong political polarization prevailed during 2018-2019. Lack of political dialogue between the
majority and the opposition deepened the divisions and mistrust between the parties. The juxtaposed
positions grew further apart when opposition relinquished en bloc their parliamentary mandates after
the majority voted against their initiative to extend the vetting process to the entire political class.
In total, 182 MPs and candidate MPs refused their parliamentary mandates. Current Parliament has
122 MPs, unable to fill the constitutional quorum of 140 seats, due to exhausted opposition lists.
The absence of a functioning Constitutional Court for more than two years contributed to
further escalate to this crisis.
The opposition did not register in local elections. The government decided to run one-party voting on
30 June 2019, resulting with all municipalities and municipal councils practically run by the same
governing Socialist Party.
Parliament started an impeachment procedure against the President of the Republic and set an
Investigative Parliamentary Commission to impeach the President.
Currently the Socialist Party has seized almost all powers, the executive, legislative, local government
and almost all independent institutions.
Recently, Parliament adopted another controversial legislative package restricting the freedom of
expression and seeking to control the on-line media, triggering another uproar at home and abroad.
38
A. QUESTIONS OF THE PRESIDENT OF THE REPUBLIC FOR AN OPINION OF
THE VENICE COMMISSION
For more than a year, Albania has been in a sui generis unprecedented political, constitutional,
institutional and representative crisis.
Under the conditions where the country is:
Without a functional Constitutional Court for more than two years;
Without a functional Supreme Court;
The judicial system is widely perceived as paralyzed or captured by the ruling majority;
With a mono-party Parliament with 122 MPs, failing to fulfill the constitutional quorum of 140
seats, due to the en bloc resignation of 182 opposition MPs and candidate-MPs from Parliament;
With Government, Parliament, all Municipalities and City Councils in the hands of a single
party, including almost all independent bodies.
Considering that the Venice Commission opinions are a reference source for all member states, and
in need of reflecting on current state of affairs in Albania, I would like to put forward the following
questions to clarify the model of a functioning democracy and the rule of law based on the principles
of the European Convention of Human Rights.
I. EXPANSION OF THE SCOPE OF THE INVESTIGATION COMMISSION BY THE
MONO-PARTY PARLIAMENT
In Opinion No. 959/2019 CDL-AD (2019) 019, the Venice Commission notes that:
“78. At the time of the preparation of this opinion, the Special Investigation Commission had been
established, but had not yet provided its report, expressing the wish to take into account the opinion
of the Venice Commission.”
1. Did the Albanian Parliamentary Investigation Commission take into consideration the Opinion and
recommendations of the Venice Commission?
2. On expanding the scope of inquiry and prolonging the activity of the Parliamentary Investigation
Commission for alleged violations of the law (and not the Constitution!), do you consider that:
- Does it serve to the reduce or increase of the tensions?
- Does it further serve or frustrate the goals of mutual checks and balances, in a situation where
Parliament and all Municipalities are dominated by one party?36
36 Ref para 93 of the Opinion.
39
3. Does the expansion of the scope of investigation and prolongation of the activity of the
Parliamentary Investigation Commission37 exceed the constitutional investigative power of
Parliament?
4. In Opinion No. 959 / 2019 CDL-AD (2019)019, the Venice Commission notes that:
“80. While the composition of a constitutional court is always of keen interest for political actors,
having in mind such a specific case when the judges are chosen is not an ideal background for
ensuring their independence...”
4.1 In cases where Government and Parliament are one, and the President is the only institutional
actor outside government's tutorial: Does the expansion of the scope for alleged violation of the Law
(and not the Constitution!) increase the imminent risk for political appointment of the members of
Constitutional Court and of Supreme Court from only one party, i.e. from only one political actor?
4.2 Does this approach exceed parliamentary constitutional powers related to nomination of the
judges of the Constitutional Court?
4.3 Does the illegal expansion of the scope of Parliamentary Investigation Commission place the
President under political pressure to nominate to the Constitutional Court the candidates politically
preferred by the ruling party?
4.4 Does it risk to jeopardize the legitimacy of the Constitutional Court?
4.5 Does the use of the Investigation Commission and of other actions38 of the mono-party
Parliament risk to establish a precedent for improper political pressure by the ruling party even on the
Supreme Court for the nomination of its 3 members of the Constitutional Court?
II. CONSTITUTIONAL COURT
The Constitutional Court stands at the top of Judicial Institutions in Albania.
In its interim Opinion No 824/2015 CDL-AD (2015)045, para 23 and 24, and the Final Opinion No.
824/2015 CDL-AD (2016)009, para 36, 37, 39, on the Revised Draft-Constitutional Amendments on
the Judiciary, The Venice Commission warned of dangers when:
37 According constitutional principles and Constitutional Court jurisprudence in the Rep of Albania,
Decisions no 20/2007, 18/2003, 30/2014, 38/2015. 38 Resolution of the Assembly on 15.11.2019, through which all public institutions were called upon to reject
the nomination of the President of the Republic to the Constitutional Court.
40
1. The Constitutional Court is established from the beginning;
2. The Majority has a qualified majority;
3. The President and Parliament belong to the same political force.
The Venice Commission demanded that clear rules be established for the gradual transition of
the Members of the Constitutional Court, including the explicit designation of appointing
institutions and modus operandi (constitutional sequence of appointment) so that the Court
would not be politically captured by the ruling party.
1. In cases where parliament is de facto composed entirely by one political force, thus holds a
qualified majority of 2/3 of Parliamentary votes, does election of the Constitutional Court members
by only one party constitute a risk for political appointment of this Court?39
2. Is the election of members of the Constitutional Court only by one political actor compatible with
the European Constitutional practice and with Venice Commission recommendations in its opinion
on Albania and Montenegro?
3. Does the establishment of the Constitutional Court only by one political force, thus by a single
political actor, constitute a violation of Article 6 of the ECHR, as a Court established in violation
of the Constitution and the Law?
4. Is the violation of modus operandi (constitutional sequence of appointments) while just
commencing the implementation of constitutional and legal provisions, and while the
Constitutional Court is established from the beginning, in line with European constitutional
practice and does it risk setting a dangerous precedent for the future?
5. Is Parliament legitimized to interfere in the appointment procedure of Constitutional Court
members designated to the President or the Supreme Court?
6. Can Parliament intervene in the relationship between the Justice Appointments Council (JAC) and
other appointing bodies – i.e. the President or the Supreme Court, in circumstances where the
constitutional power of Parliament is limited to electing only 3 of the 9 members of the
Constitutional Court?
III. ON THE ACTIVITIES OF THE PRESIDENT OF THE REPUBLIC
1. When the Constitutional Court is established from the beginning, when parliamentary majority and
the President do not belong to the same political party, and when the mono-party parliament seeks
to hijack President’s constitutional power for appointing Constitutional Court judges, does the
political majority risk to appoint more than 1/3 of the Constitutional Court members?
39 Ref to Opinion CDL (2016) 002, of Venice Commission.
41
2. Does the violation of modus operandi (constitutional sequence of appointment) constitute a
violation of the letter of the Constitution, of its spirit, as well as of the standard for a balanced
composition of the Constitutional Court?
3. Between the constitutional40 provision to implement the modus operandi (constitutional sequence
of appointment) and the legal provision41 to respecting the 30-day deadline; which provision
prevails according the principle of hierarchy of norms according to the Constitution of the Republic
of Albania?
4. Does violation of the modus operandi (constitutional sequence of appointment) constitute
interference in the discretion space of the other appointing body?
5. According to European Constitutional practice, is it acceptable that misinterpretation of the
unblocking mechanism deprives the President of his constitutional power to appoint a member of
the Constitutional Court, notwithstanding he has continuously expressed and documented his
willingness to exercise this power?
6. Does the distortion of the unblocking mechanism risk to establish a dangerous precedent by
practically turning it into mechanism to hijack constitutional powers?
7. Does the failure to propose the minimum number of 3 different candidates for each vacancy by
JAC, bring about a "forced" or a "predetermined appointment"?
8. Does this situation pose a high risk to annihilating the power to elect/choose in substance?
IV. ON THE ACTIVITY OF THE ALBANIAN PARLIAMENT
Venice Commission Opinion No CDL-AD (2016) 009, page 9, quotes: “In the European
constitutional experience, the election by parliament of constitutional judges is often supported by
the requirement of a qualified majority in view of ensuring a choice shared by a pluralistic support
of political parties, and not by the majority only”.
In view of this assessment:
1. Does the election of the Constitutional Court members by a mono-party parliament contradict the
spirit of Constitutional amendments, the above recommendation of the Venice Commission and
the ultimately question the impartiality of the Court members?
40 Article 179, point 2 and 12 of Constitution. 41 Article 7/b, point 4 of Law no. 8577/2000.
42
2. When government, Parliament, all Municipalities, Municipal Councils and almost all independent
institutions are in the hands of one party: does capture or paralysis of the Constitutional Court serve
to the political interest of this force to be free of independent control mechanisms, such as the
Constitutional Court?
3. When this mono-party parliament further seeks to appoint more than 1/3 of the members of the
Constitutional Court by hijacking the appointment of the President, does Parliament exceed its
constitutional power and establish dominance in the composition of the Court with candidates
enjoying the support of only one political force?
4. Do Parliament’s refusal to cooperate with the President of the Republic42, its voting in 11
November 2019 Plenary, and adoption of 15 December 2019 Resolution, evidence violation of the
principle of constitutional loyalty with the purpose of capturing the Constitutional Court?
5. The legal initiative of Parliament, on 6 December 201943, anticipating an amendment to the
procedure of swearing in office to the President of the Republic, including introduction of the
retroactive effect to remove the mandate of President’s appointed judge in the Constitutional Court,
does it evidence that the mono-party Parliament is determined to capture the Constitutional Court
at all costs?
6. Does Parliament’s activity to place itself in a position of supremacy towards the President (the
Investigation Commission) and towards the Constitutional Court (Resolution 15.11.2019), along
with its legal initiative on 6.12.2019, violate the principle of separation and balance of powers?
V. ON PARLIAMENT’S APPOINTMENTS IN THE CONSTITUTIONAL COURT
1. In the light of the European Constitutional practice, does the voting of a member of the
Constitutional Court from a list with only one candidate44 legitimize the principle of "election"?
2. Why did the Constitution authors and the Venice Commission (2015-2016) envisage the necessity
of at least 3 candidates for each vacancy? What risks were meant to be avoided? Is this risk eminent
today? What do you recommend in such cases?
42 The President of the Republic on 15.10.2019, 5.11.2019, 7.11.2019 and 11.11.2019 has officially
(documented) asked Assembly’s cooperation to appoint the members of the Constitutional Court according to
constitutional sequence. 43 “On some addenda and amendments to Law No 8577, dt 10.02.2000 "On the organization and functioning
of the Constitutional Court", as amended. 44 http://www.parlament.al/Files/Procesverbale/20191115120928Proc.%20dt.11.11.2019.pdf page 34-35.
43
3. In this case, has the power of election been de facto dispossessed by a body that does not have such
power, i.e. JAC45?
4. Does Parliament’s exclusion of Mrs. Arta Vorpsi from the list of candidates to be voted in its
plenary of 11 November 2019, for the 2nd and 4th vacancies, constitute a violation of the
Constitution?
5. How compatible is Parliament’s election of two judges in violation of constitutional procedure
with the concept of a "Tribunal established by Law", as defined by Article 6 of the ECHR?
6. Do Parliament’s constitutional violations related to election of its Constitutional Court members,
taken alone and/or altogether, question the guarantees of individuals for a regular legal process?
VI. ON THE ACTIVITY OF THE JUSTICE APPOINTMENTS COUNCIL (JAC)
1. Does the duration in office well beyond constitutional mandate of the High Court Judge Ardian
Dvorani (16 years out of 9 as stipulated by the Constitution), and consequently his assignment as
JAC Chair, infringe the principles of independence and impartiality while exercising these duties?
2. Ardian Dvorani’s biased activity, in violation of the law and of the JAC decisions constituting in:
- The Constitutional violation of modus operandi (the sequence of appointments stipulated by
the Constitution, and endorsed by JAC decisions on. 21.9.2019)
- Publishing in the Official Gazette the list of candidates for President’s second vacancy, in
violation of laws no. 115/2016, 78/2014, and of JAC collegial decision;
- Official communication surpassing the scope of his mandate and in absence of a JAC decision;
- Failure to publish JAC meetings’ transcripts for a whole year, in violation of law no. 115/2016
(articles 226, 232) and the decision no 1, dated 08.02.2019 of JAC.
As illustrated in two official video spots published by the Institution of the President of the Republic:
- http://president.al/en/spoti-pare-ne-mbrojtje-te-kushtetutes-dhe-integritetit-te-gjykates-
kushtetuese/
- http://president.al/en/spoti-dyte-ne-mbrojtje-te-kushtetutes-dhe-integritetit-te-gjykates-
kushtetuese/
Did it infringe the integrity of the election process for candidates of the Constitutional Court?
Which constitutional provision foresees simultaneous appointments of Constitutional Court
Judges from one designated institution?
3. All the facts related procedural violations of JAC establishment (blocking JAC functioning for 2
years; having only 7 members, and in the end only 5 out 9 required); do they affect JAC legitimacy
and credibility, and consequently affect the legitimacy of its product, i.e. composition of
candidates’ lists for the Constitutional Court?
45 Referring to CDL-AD (2016) 009, page 11, the participation of JAC in the pre-selection of candidates to be
appointed by the President and Parliament further reduces the risk of political appointments (Article 125 of the
Constitution).
44
4. The exclusion of the Ombudsman from JAC activity, in violation of the Constitution (article 179,
point 11) and of the law no. 115 (article 233): does it infringe transparency of JAC activity and
does it limit the constitutional powers of the Ombudsman?
5. How important is the plurality of candidates in the selection process of candidates, particularly
when proceeding with several vacancies simultaneously, and when the Constitutional Court is
established from the beginning?
6. If candidates for Constitutional Court are not part of the judiciary, and therefore vetted by JAC
with the assistance of Government Agencies (Directorate of Classified Intelligence Information,
Control Service for Internal Affairs in the Ministry of Interior, High Inspectorate of Declaration
and Audit of Assets and Conflict of Interests, General Directorate for the Prevention of Money
Laundering): Is there a risk of political favoritism towards candidates preferred by government?
7. Ranking the candidates who have failed the School of Magistrates test in the top of the lists,
(violating law no. 84/2016, article 42, point 2, article 44, letter c, and law no. 96/2016, article 165,
point 2, 3, 4, 8) does it infringe the credibility and integrity of the JAC assessment and ranking
process? Consequently, does it infringe the credibility, level of professionalism and the integrity
of the members of Constitutional Court, particularly when the latter is established from the
beginning?
8. While the Albanian judicial system is currently examining:
i. a criminal case investigated by the Special Anti-Corruption and Organized Crime
Structure (SPAK) on the arbitrary activities of the JAC Chair Ardian Dvorani; and
ii. an administrative case filed by the Ombudsman, opposing the by-laws approved by JAC:
What would be the effect of the Venice Commission Opinion towards the investigation and
adjudication of these cases?
Honorable Mr. Buquicchio,
Given the persisting sui generis crisis in my country, and when thousands of Albanians are
abandoning the country due to the non-functioning of the rule of law and violation of their
fundamental freedoms, I would like to bring to your attention and to the attention of the Venice
Commission that this Opinion shall have a direct impact on the course Albania is about to take,
towards democracy or dictatorship!
With the assurance of the highest consideration,
Sincerely,
Ilir Meta