Strasbourg, 6 March 2020 CDL(2020)011 *

Opinion No. 978 / 2020 Engl. only

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW

(VENICE COMMISSION)

ALBANIA

DRAFT OPINION

ON THE APPOINTMENT OF THE MEMBERS

OF THE CONSTITUTIONAL COURT

On the basis of comments by

Mr Oliver Kask (Member, Estonia)

Mr Martin Kuijer (Substitute Member, the Netherlands)
Ms Angelika Nussberger (Member, Germany)
Mr Cesare Pinelli (Substitute Member, Italy)
Ms Hanna Suchocka (Honorary President)
Mr Kaarlo Tuori (Member, Finland)

*This document has been classified restricted on the date of issue. Unless the Venice Commission decides otherwise, it will be
declassified a year after its issue according to the rules set up in Resolution CM/Res(2001)6 on access to Council of Europe
documents.
This document will not be distributed at the meeting. Please bring this copy.
www.venice.coe.int
CDL(2020)011 -2-

Contents
I. Introduction...................................................................................................................... 3
II. Scope of the opinion ........................................................................................................ 3
III. Background ..................................................................................................................... 4
IV. Analysis ....................................................................................................................... 7
A. Model of the Constitutional Court - staggered rotation ................................................. 7
B. Conditions for appointment .......................................................................................... 9
C. Absence of the High Court ......................................................................................... 10
D. Vetting ....................................................................................................................... 10
E. Justice Appointments Council .................................................................................... 12
1. Composition ........................................................................................................ 12
2. Transparency of the operations of the JAC .......................................................... 13
3. Ranking of candidates ......................................................................................... 13
4. Transmission of the lists ...................................................................................... 14
F. Default mechanisms .................................................................................................. 15
G. Taking the oath .......................................................................................................... 16
H. Sequencing of appointments - Article 179 (2) of the Constitution ............................... 18
I. Impeachment of the President ................................................................................... 19
J. Loyal cooperation ...................................................................................................... 20
V. Conclusion..................................................................................................................... 20
 -3- CDL(2020)011

I. Introduction

1. By letter of 30 December 2019, the Speaker of the Albanian Assembly, Mr Gramoc Ruçi,
requested an opinion of the Venice Commission regarding the procedure for the appointment of
members of the Constitutional Court of Albania. On 21 January 2020, the President of Albania, Mr
Ilir Meta, requested an opinion on the same topic.

2. Mr Kask, Mr Kuijer, Mr Pinelli, Ms Nussberger, Ms Suchocka and Mr Tuori acted as rapporteurs

for this opinion.

3. On 13-14 February 2020, a delegation of the Commission composed of Mr Pinelli, Ms

Nussberger, Ms Suchocka and Mr Kuijer, accompanied by Mr Schnutz Dürr from the Secretariat
visited Tirana and had meetings with (in chronological order) the Speaker of the Assembly, the
Members of the Investigative Commission of the Assembly, the President of Albania, the
Constitutional Court, the Public Protector (ombudsperson), the Justice Appointments Councils
2019 and 2020, the diplomatic community as well as with the Commission’s (former) members.
The Commission is grateful to the Albanian authorities and the Council of Europe Office in Tirana
for the excellent organisation of this visit.

4. This opinion was prepared in reliance on the English translation of the relevant provisions of the
Constitution, the Law on the Constitutional Court and the Law on Governance Institutions of the
Justice System. The applicable legislation is available in English at the site of the EU programme
Euralius.1 The translation may not accurately reflect the original version on all points.

5. This opinion was drafted on the basis of comments by the rapporteurs and the results of the visit
to Tirana. Following the cancellation of the 122nd session of the Venice Commission due to the
COVID-19 disease, the present (Joint) Opinion was adopted by the Venice Commission by a
written procedure on … March 2020.

II. Scope of the opinion

6. It is not the purpose of this opinion to provide a detailed and exhaustive analysis of the
constitutional crisis in Albania. This opinion will focus on the (recent) appointments of members to
the Constitutional Court of Albania. If this opinion remains silent on certain aspects of this issue,
this is not to say that the Venice Commission implicitly agrees with such aspects or deems such
aspects to be in line with existing standards and practice in the field.

7. The Venice Commission has neither the mandate nor the required competences to establish
the underlying facts in case these are disputed. It cannot take a position on who are the members
of the constitutional court by person. The Venice Commission cannot be an alternative for the
paralysed Constitutional Court.

8. However, the Commission can take a position on the rules for nomination of the constitutional
court members in principle and interpret them based on European standards. The Venice
Commission is aware of the difficulty of the situation and the need to provide an interpretation of
the provisions based on principles of constitutional law.

1 Justice Reform Collection of Laws: https://euralius.eu/index.php/en/library/albanian-

legislation/category/103-justice-reform-collection-of-laws (more than 600 pages). The bye-laws, including
the rules of procedure of the Justice Appointments Council and the rankling methodology are available
at: https://euralius.eu/index.php/en/library/albanian-legislation/category/121-justice-appointments-
council.
CDL(2020)011 -4-

III. Background

9. For nearly two years, until November 2019, as a result of retirements, resignations and the
vetting procedure, the Constitutional Court of Albania had only one judge out of nine left, Ms Tusha.
Even though her mandate had expired in 2017 she remains in office until she is replaced.

10. Depending on the interpretation of the rules on appointment, the Court has now four members
since November 2019. Chambers of three members can take only admissibility decisions but
cannot decide on the merits. This means that the Constitutional Court was and to a large extent
still is non-operational because it has a quorum of six members to sit in plenary.

11. According to Article 125 of the Constitution, as amended in 2016, the Constitutional Court has
nine members2, one third appointed each by the President, the Assembly and the High (Supreme)
Court. The High Court itself has only one judge left and cannot appoint the three members of its
quota. The procedure of appointment is disputed between the other two state organs, the President
and the Assembly who have diverging views as to who currently is a judge at the Court.

12. In view of the complexity of the matter, the short chronology below lists some elements that
are relevant for the recent appointments of the members of the Court.

22/07/2016 The Constitution is amended and provides that the Constitutional

Court is composed of 9 members, 3 appointed by the President of
Albania, 3 elected by the Assembly with a 3/5 majority of all its
members and 3 elected by the High Court, among the 3 highest
ranked candidates presented by the Justice Appointments Council –
JAC (Article 125 of the Constitution)
27/01/2017 The Assembly composes the JAC 2017 by drawing lots for the first
time.
31/01/2017 The Prime Minister makes a statement complaining that non-vetted
persons are members of the JAC 2017. Some members of the JAC
resign, others are removed through vetting and the JAC 2017 never
meets.
03/2017 The mandate of the Constitutional Court Judge, Ms Tusha, expires
but she remains in office according to Article 125(7) of the
Constitution, which provides that the members remain in office until
the appointment of their successor. Her vacancy should be filled by
the High Court.
07/12/2018 The JAC 2018 is composed by drawing lots for the second time.
19/03/2018 The JAC 2018 holds its only meeting where the Representative of
the Assembly calls on the Council to limit itself to administrative
functions but to refrain from ranking candidates.
2017/2018 The JAC 2017 and the JAC 2018 do not make any ranking of
candidates. The JAC 2017 never meets and the JAC 2018 has only
one meeting.
07/02/2018 The President announces one vacancy at the Constitutional Court.
12/02/2018 The Assembly announces one vacancy at the Constitutional Court.
04/03/2019 The President announces one vacancy at the Constitutional Court.
04/03/2019 The JAC 2019 adopts its bye-law no. 4 and decides that (in order to
be able to present more candidates) persons who have passed the
first instance of the vetting proceedings (Independent Qualification
Commission) and whose case is pending in appeal (at the Special
Appeal College) can be a candidate for the Constitutional Court.

2 The Constitution refers both to “Members” and “Judges” of the Constitutional Court.
 -5- CDL(2020)011

04/03/2019 The Assembly announces one vacancy.

2019 Several persons apply for more than one of the open vacancies.
29/09/2019 For the four open vacancies, the JAC 2019 adopts four lists,
numbered in the order of the opening of the vacancies. Two
proposals are for the President (nos. 128 and 132) and two for the
Assembly (nos. 130 and 134). The lists adopted are the following:

Presidential vacancy Assembly vacancy Presidential vacancy Assembly vacancy

of 07/02/2018 – of 12/02/2018 – of 04/03/2019 – of 04/03/2019 –
JAC decision no. JAC decision no. JAC decision no. JAC decision no.
128: 130: 132: 134:
1. Ms Arta Vorpsi, 1. Ms Arta Vorpsi, 1. Ms Arta Vorpsi, 1. Ms Arta Vorpsi,
2. Ms Elsa Toska, 2. Ms Elsa Toska 2. Ms Fiona 2. Ms Fiona
3. Mr Besnik Muçi, 3. Mr Besnik Muçi Papajorgji, Papajorgji,
4. Ms Regleta 3. Ms Elsa Toska, 3. Ms Elsa Toska
Panajoti 4. Ms Marsida
Xhaferllari

08/10/2019 The Chair of the JAC 2019 transmits two lists to the President for
simultaneous appointment.
10/10/2019 The Secretary-General of the President’s Office sends a letter to the
Chair of the JAC 2019 drawing attention to the fact that two lists have
been submitted simultaneously: “where, at least, two institutions have
the opportunity to proceed with the completion of the respective
vacancies, which end at the same time […], the law has also specified
the relevant chronological order according to which the relevant
institutions can and should act. […] Since the expiry of the 30-day
deadline set by the Constitution and law is an event outside the human
will, it is important to respect the chronological order, in the order set by
the Constitution and the law, which is also an obligation for the final
administrative actions of JAC.”
14/10/2019 The Chair of the JAC 2019 transmits two lists to the Assembly (decisions
nos. 130 and 134) for simultaneous appointment.
14/10/2019 The Chair of the JAC replies to the letter by the President that he has
transmitted the lists to the Assembly on 14/10/2019 (i.e. six days after
having transmitted the lists to the President). The reply does not give a
substantive answer to the concerns raised by the President’s Office.
15/10/2019 The President appoints Mr Muçi as a judge of the Constitutional Court
(from the list in decision no. 128).
18/10/2019 The President accepts the oath from Mr Muçi.
05/11/2019 By reference to Article 179(2) of the Constitution (sequence rule) the
President suspends the appointment for his second vacancy until the
Assembly will have appointed its judge for its first vacancy. This act of
suspension is not challenged in court.
07/11/2019 The JAC 2019 meets to discuss the position of the President. It seems
that the Public Protector’s question why the JAC Chair transmitted the
two lists to the Assembly six days later than those sent to the President
is not answered.
09/11/2019 Following the publication of all four decisions (nos. 128, 130, 132 and
134) on the website of the High Court on 22 September 2019, only
decision no. 132 is also published in the Official Gazette.
11/11/2019 The President calls upon the Assembly to elect only one candidate.
11/11/2019 The Assembly elects first Ms Toska from its first list (no. JAC decision
no. 130). At that moment the list had only two names left (Ms Vorpsi and
CDL(2020)011 -6-

Ms Toska) because Mr Muçi had already been appointed by the

President.
The Assembly considers that Ms Vorpsi had already been appointed by
default according to Article 7/b of the Law on the Constitutional Court
because the President had not appointed a second candidate within the
30 days deadline provided in that Article. If this was the case, the list no.
130 would have had only a single name left, Ms Toska.
The Assembly then elects Ms Papajorgji from its second list (JAC
decision no. 134). Depending on the view on the default appointment of
Ms Vorpsi, only one or two candidates remained on that list.
13/11/2019 The President appoints Ms Marsida Xhaferllari as Judge from his second
list (JAC decision no. 132).
13/11/2029 Ms Vorpsi who considers herself appointed by default signs a statement
in front of a notary expressing her readiness to act as a Constitutional
Court judge.
14/11/2019 The President accepts the oath from Ms Toska, Ms Xhaferllari and Ms
Papajorgji.
15/11/2019 The Assembly adopts a resolution considering Ms Vorpsi a judge of the
Constitutional Court appointed by default.
19/11/2019 The President files criminal proceedings against the JAC 2019 Chair, Mr
Dvorani, for “abuse of duty” because of sending the organs two lists at
the same time and with a difference of six days, the absence of minutes
of the meetings of the JAC meeting protocols and the exclusion of the
ombudsman from the selection procedure.
21/11/2019 The first candidate appointed by the President, Mr Muçi, loses his
position in the vetting procedure because the Special Appeals College
accepts the appeal by the Public Commissioner against the first instance
decision.
22/11/2019 The Assembly extends the timeframe of the Investigative Commission
on the impeachment of the President (see opinion CDL-AD(2019)019
Albania - Opinion on the powers of the President to set the dates of
elections, October 2019) and includes the President’s refusal to accept
the oath of Ms Vorpsi as grounds for impeachment.
06/12/2019 A draft amendment is proposed in the Assembly to the Law on the
Constitutional Court allowing for sending the oath in writing to the
President when he refuses to accept the oath within 10 days after the
“date of election, appointment or announcement of appointment”.
26/12/2019 On its web-site, the Constitutional Court announces its composition as
follows:
1. Vitore Tusha, Acting President
2. Elsa Toska, Member
3. Marsida Xhaferllari, Member
4. Fiona Papajorgji, Member.3
12/02/2019 The Assembly adopts the draft law introduced on 6 December 2019
providing for the possibility of sending the oath in writing if the President
is not willing to accept it. A clause providing that the law should apply to
“judges who are elected, appointed or announced as appointed, but who
have not taken the oath, with the entry of this law” is removed before
adoption.
13-14/02/2019 The delegation of the Venice Commission visits Tirana.

3 http://www.gjk.gov.al/web/Composition_90_2.php
 -7- CDL(2020)011

IV. Analysis

13. Due to the complex nature of the problem it is not possible to reply individually to each
question of the Speaker and the President. This opinion can only address the most salient
elements of this problem.

A. Model of the Constitutional Court - staggered rotation

14. Since the constitutional amendment of 22 July 2016, Article 125 of the Constitution provides
for a rotation model whereby three appointing bodies, the President of Albania, the Assembly and
the High Court appoint one member each of the Constitutional Court every three years.

15. This new system replaced the earlier system whereby the Constitutional Court was composed
of nine members, who were appointed by the President of the Republic with the consent of the
Assembly. This model had proved problematic and the new model gives the three state bodies
separate appointment powers.

16. The new system reflects the separation of powers and guarantees a balanced and pluralistic
composition of the Court. In its opinions on the draft constitutional amendments, the Venice
Commission welcomed this mixed system providing for the election or appointment by the three
main branches of power4.

17. Given that the members of the Constitutional Court have a nine years mandate, the logic
of the composition is that every three years, three members are appointed/elected by the
President, the Assembly and the High Court respectively. The first composition is staggered,
i.e. three members have a three years mandate, another three a six years mandate and only
three have the full nine years mandate. In order to keep the system of rotation in place, if a
member resigns, falls ill or dies, the member replacing him or her only takes up the mandate for
the time remaining from the mandate of the member who is replaced.

18. Article 125 of the Constitution provides:

“1. The Constitutional Court shall consist of 9 (nine) members. Three members shall be appointed
by the President of the Republic, three members shall be elected by the Assembly and three
members shall be elected by the High Court. The members shall be selected among the three first
ranked candidates by the Justice Appointments Council, in accordance with the law.
2. The Assembly shall elect the Constitutional Court judges by no less than three- fifth majority of
its members. If the Assembly fails to elect the judge within 30 days of the submission of the list of
candidates by the Justice Appointment Council, the first ranked candidate in the list shall be
deemed appointed.
3. The judges of the Constitutional Court shall hold office for a 9 year mandate without the right
to re-appointment.
[…]”
Article 7 (2) of the Law on the Constitutional Court provides:
“2. The composition of the Constitutional Court is renewed every 3 years by 1/3 of its composition.
The new members shall be appointed according to the sequence, respectively by the President of
the Republic, the Assembly, and by the High Court. This rule shall be followed even in the event
of early termination of the mandate of the Constitutional Court member.”

4CDL-AD(2015)045, Interim Opinion on the Draft Constitutional Amendments on the Judiciary of Albania,
para. 23; CDL-AD(2016)009, Final Opinion on the revised draft constitutional amendments on the
Judiciary (15 January 2016) of Albania, para. 36; for Ukraine for instance, see CDL-AD(2009)024 Opinion
on the Draft Law of Ukraine amending the Constitution presented by the President of Ukraine, para.97.
CDL(2020)011 -8-

19. Article 127 (3) of the Constitution provides that when a vacancy arises, the same body that
had appointed the outgoing member shall replace the member but only for the remainder of the
mandate:
“3. Where the position of a judge remains vacant, the appointing body shall appoint a new judge,
the latter staying in office until the expiry of the mandate of the outgoing judge.”

20. For the first (re-)composition of the new Constitutional Court, the transitional Article 179
establishes a system whereby some of the members shall have shorter mandates to enable the
staggered renewal of the Court every three years. According to this provision the mandate of each
time 3 members will expire respectively in 2022, 2025 and 2028.:
“1. Members of the Constitutional Court shall continue their activity as members of the
Constitutional Court, in accordance with the previous mandate.
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.
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.
[…]”

21. Diverging interpretations of Article 179 (2) of the Constitution, notably as concerns the initial
appointments and irregular appointments (out of the regular appointments every three years) are
at the core of the problem of appointments (see further below).

22. The rotation model would mean that three mandates would run from 2016 to 2025, three
from 2017 to 2028 and three from 2022 to 2031. This could result in the following table:

Date of Previous Mandate Institution Nominee term Date of 1st

vacancy member expired length call
25.10.2016 Sokol Berberi 2016 President Besnik 2016- 07.02.2018
Muçi/vacant 2025
31.07.2017 Vladimir Kristo 2016 Assembly Elsa Toska 2016- 12.02.2018
2025
Hold over Vitore Tusha 2017 Supreme Court 2017-
2025

03.05.2018 Altina Xhoxhaj 2019 President Marsida 2019- 09.11.2018

Xhaferllari 2028
17.12.2018 Bashkim Dedja 2019 Assembly Fiona 2019- 24.12.2018
Papjorgi 2028
10.05.2018 Fatmir Hoxha 2020 Supreme Court 2020-
2028

31.01.2018 Besnik Imeraj 2022 President until 2022 07.02.2018

23.03.2018 Fatos Lulo 2022 Assembly until 2022 28.08.2018
16.07.2018 Gani Dizardi 2022 Supreme Court until 2022
(The Venice Commission is grateful to the US Embassy for providing this table.)

23. This table shows that two mandates (Members Berberi and Kristo) expired in 2016 – first
round; two in 2019 (Members Xhoxhaj and Dedja) – second round - and three were expected
 -9- CDL(2020)011

to expire in 2022 (Members Imeraj, Lulo and Dizardi) – third round. Transitional Article 179 (3)
of the Constitution provides that “[a]iming 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.” This means that the mandate of
Member Tusha, ending in 2017, is attributed to the first round (together with the 2016 mandates
of Members Berberi and Kristo, and Justice Hoxha’s mandate belongs to the second round
(together with the mandates of Members Xhoxhaj and Dedja).

24. In practice, with the exception of Ms Tusha, the mandates of the ‘old’ members were
terminated prematurely due to resignations or vetting. Ms Tusha’s mandate expired in 2017 but
she continues to sit as a judge by virtue of Article 125 (7), which provides that “The Constitutional
Court judge shall continue to stay in office until the appointment of the successor, except for the
cases provided for in Article 127, paragraph 1, subparagraph c, ç), d), and dh).” Thus, when the
first appointments were made in November 2019, nine positions needed to be filled.

25. While the model of partial renewal is in principle a reasonable model, due to delays in
appointing the first members (inactivity of the Justice Appointments Councils 2017 and 2018),
this system has been disturbed and additional judges with a short mandate have to be
appointed. Three of the positions to be filled have become less attractive because the members
would be appointed only until 2022.

B. Conditions for appointment

26. There are four – both formal and substantive - preconditions for taking up the office of a
constitutional court judge in Albania:
1. Qualification
2. Proposal by the Judicial Appointment Council
3. Appointment / election by the President, Assembly or High Court
4. Taking of the oath

27. Each of these requirements is specified by the Constitution and by law. The relevant aspects
in the present case can be summarized as follows:

1. Qualification

28. The criteria for qualifying as a candidate for a CC judge are set out in Art. 125 paras. 4 and 5
of the Constitution (law degree, 15 years of practical experience, no political post in the last 10
years) and further specified in Article 7/a of Law No. 8577. According to Article 7/a a candidate has
to be – among other elements - “appreciated for professional skills and ethical and moral integrity”.

2. Proposal by the JAC

29. Article 7/b and 7/c of Law No. 8577 on the Constitutional Court set out specific formal rules for
the procedure of the selection of candidates for the constitutional court. This procedure precedes
the election procedure as such.

3. Appointment / election by the President / Assembly / High Court

30. According to Article 125 of the Constitution three State organs (the Assembly, the President
and the High Court) have the competence to elect three members each of the Constitutional Court.
The most important formal rule is contained in Article 179 para. 2. According to this rule the
President, the Assembly and the Supreme Court have to take turns in electing constitutional court
CDL(2020)011 - 10 -

members (also called the ‘sequence rule’). The interpretation of this rule is at the core of the dispute
between the President and the Assembly (see below).

4. Taking of the oath

31. Taking the oath before the President is a clear constitutional requirement for being validly
installed as constitutional court judge (Article 129 of the Constitution).

C. Absence of the High Court

32. The main obstacle for a full composition of the Constitutional Court is the fact that following
retirements, resignations and vetting, the High Court has only one judge left. Therefore, the High
Court cannot appoint its three members of the Constitutional Court as foreseen by Article 125 of
the Constitution. The absence of the High Court may be even more critical for the stability of Albania
than the absence of the Constitutional Court. Cases from lower courts cannot be decided and
Albania systematically violates the right to a fair trial within a reasonable time. In the absence of
any other remedy, this is likely to lead to numerous cases ending up before the European Court of
Human Rights.

33. As there is no immediate solution to the re-composition of the High Court, its absence must at
least not result in blocking the re-composition of the Constitutional Court. The impossibility of the
appointment by the de facto inexistent High Court must not prevent the other appointing bodies,
the President and the Assembly from making their six appointments.

34. The Commission’s delegation learned that the vacancy of the only member who remains from
the ‘old’ of the Constitutional Court, Ms Tusha, is to be filled by the High Court. Amidst a very
complex situation, this is relatively good news because it means that together with six members to
be appointed by the President and the Assembly, the Constitutional Court can have seven
members until the High Court is re-established and can make its nominations. The quorum for the
plenary session of the Constitutional Court is six members and five votes are required to make a
decision. It can only be hoped that among those seven members five can agree to adopt judgments
on the cases that are already pending with the Court.

35. However, the Commission’s delegation also learned that there are few candidates for
appointments to the High Court and that this would also be due to the rigour of the vetting procedure
(see below).

D. Vetting

36. Coherently, the interlocutors of the Venice Commission’s delegation insisted that the vetting
procedure was indispensable in Albania, even if it had led to unforeseen consequences.

37. At various stages, the Venice Commission was involved in the assessment of the so-called
vetting in Albania. In 2015, the Venice Commission gave two opinions on draft constitutional
amendments, which inter alia established the vetting procedure.5 In 2016, upon request of the then
still functioning Constitutional Court, the Commission provided an amicus curiae brief.6 In these
opinions the Commission expressed that the very radical process of vetting (“qualification
assessment”) of all sitting judges and prosecutors by the specially created Independent
Qualification Commission, could be seen as appropriate in the Albanian context. The – widely

5CDL-AD(2015)045, Interim Opinion on the Draft Constitutional Amendments on the Judiciary of Albania;
CDL-AD(2016)009, Final Opinion on the revised draft constitutional amendments on the Judiciary (15
January 2016) of Albania.
6 CDL-AD(2016)036, Albania - Amicus Curiae Brief for the Constitutional Court on the Law on the

Transitional Re-evaluation of Judges and Prosecutors (The Vetting Law).

 - 11 - CDL(2020)011

shared – assumption that the level of corruption in the Albanian judiciary was extremely high
and required urgent and radical measures.7 However, the Commission insisted that this could
be only an extraordinary and strictly temporary measure and the Commission made a number of
recommendations for safeguards in the process.

38. It is futile to discuss whether it could have been foreseeable that the vetting process would
also significantly affect the High Court and the Constitutional Court. In any event, Article 125 of the
Constitution did not envisage a situation in which the Supreme Court would no longer be able to
appoint Constitutional Court members.

39. The Commission’s delegation learned that the vetting procedure took a long time in each
individual case and that for a single person to be vetted typically files of more than 10.000 pages
have to be examined because they include detailed documentation of all financial transactions over
a prolonged period of time, not only of the person to be vetted but also of all his/her relatives.

40. There seem to be numerous cases in which judges and prosecutors being vetted preferred to
resign rather than to submit themselves to this procedure. It seems that some persons did not pass
the vetting because their spouse could not explain some revenue earned long before they married.
There also seems to be an overly rigid application of procedural deadlines. Documentation has to
be provided strictly within a deadline of two weeks, which is sometimes not possible, especially
when certified documents have to be obtained from abroad. No extension of such procedural
deadlines seems to be given, even upon justification.

41. This opinion focuses on the appointments to the Constitutional Court and the Venice
Commission is not equipped to and has no mandate to examine these allegations. However, it
recommends to re-evaluate the current modality of vetting, including the scope of the vetting
process (in order to accelerate the procedure of vetting) and the application of procedural rules
such as deadlines in a less rigid manner. The vetting has to be applied in a coherent manner.

42. Candidates from the judiciary (prosecutors and judges) have to undergo the vetting procedure
by the Independent Qualification Commission and the Special Appeal College (see Articles C
seq. of the Annex to the Constitution on the Transition Qualification Assessment (vetting)). For
other candidates, from outside of the judiciary, the JAC performs the vetting itself.

43. The vetting of non-judicial candidates should be attributed as a priority to the specialised
Independent Qualification Commission and the Special Appeal College, instead of the JAC. This
would leave the JAC more time to focus on the merits of the candidates rather than examining the
enormous files processed in the vetting procedure.

44. In any case, there can be no doubt, that members of the Constitutional Court have to pass the
vetting and that the JAC should propose only candidates who have passed the vetting procedure.

7
In more detail: “The Venice Commission believes that a similar drastic remedy may be seen as
appropriate in the Albanian context. However, it remains an exceptional measure. All subsequent
recommendations in the present interim opinion are based on the assumption that the
comprehensive vetting of the judiciary and of the prosecution service has wide political and public
support within the country, that it is an extraordinary and a strictly temporary measure, and that this
measure would not be advised to other countries where the problem of corruption within the
judiciary did not reach that magnitude.” (CDL-AD(2015)045, para. 100); “With regard to the
extraordinary measures to vet judges and prosecutors, the Venice Commission remains of the
opinion that such measures are not only justified but are necessary for Albania to protect itself from
the scourge of corruption which, if not addressed, could completely destroy its judicial system.”
(CDL-AD(2012016)009, para. 52).
CDL(2020)011 - 12 -

E. Justice Appointments Council

1. Composition

45. According to Articles 125, 149/d and 179 of the Constitution, the JAC8 proposes candidates
for members of the Constitutional Court both to the President, the Assembly and the High Court
who have a right to appoint / elect three members each.

46. In addition to the constitutional provisions, the work of the JAC is also based on Law no.
115/2016 on Governance Institutions of the Justice System which regulates the work of the JAC.
In addition, the JAC 2019 adopted a number of bye-laws, which regulate its work. 9

47. The JAC consists of nine members selected annually by lot. Article 149/d (3) of the Constitution
reads “the President of the Republic shall select by lot two judges of the Constitutional Court, one
judge of the High Court, one prosecutor of the General Prosecution Office, two judges and two
prosecutors from the Courts of Appeal and one judge from the Administrative Courts.” Both Articles
149/d (3) and 179 (11) of the Constitution provide that the People's Advocate (ombudsman) shall
participate as an observer in the selection by lot and in the meetings and operations of the Justice
Appointment Council.

48. This annual rotation is intended to ensure that no single person dominates the selection
process of members of the highest judicial organs for a longer period of time.

49. In its 2015 Final Opinion, the Venice Commission found that the “Participation of the JAC in
the preselection of candidates to be appointed by the President and Assembly further reduces the
risk of politically-driven appointments (Article 125).”10 On the other hand, the Venice Commission
observed a risk of corporatism since all members come from the judiciary and the Constitutional
Court.

50. The Members of the JAC serve a one-year term starting from 1 January to 31 December of
each year. The Members are selected by lot by the President and if the President fails to select
them by 5 December, the Speaker of the Assembly makes the selection by lot by 10 December.

51. While the composition of the JAC is quite clear, it did not function in 2017 and 2018 and
valuable time was lost in order to avoid the constitutional crisis by filling new vacancies in the
Constitutional Court as they came up.

52. In 2017, the JAC had been composed by lot but it seems that the executive made a statement
complaining that members of the JAC had not been vetted. Some members of the JAC resigned,
others were removed through vetting and the JAC 2017 never met. The JAC 2018 held only one
meeting after a representative of the legislature called it to limit itself to administrative functions but
not to rank candidates.

53. Calls for the JAC 2017 and 2018 not to do any ranking of candidates lack a legal basis. There
is no obligation for JAC members to have been vetted already. Article 149/d is quite clear that the
members shall be selected from the ranks of judges and prosecutors, who are not under
disciplinary proceedings. Insisting that JAC members also have to successfully undergo the vetting
process is not provided for in the Constitution nor in law.

8 The organisation and functioning of the JAC is also regulated in 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”.
9 https://euralius.eu/index.php/en/library/albanian-legislation/category/121-justice-appointments-council
10 CDL-AD(2016)009, para. 36.
 - 13 - CDL(2020)011

2. Transparency of the operations of the JAC

54. According to the applicable legal provisions, the procedure before the JAC should be
transparent. This is very important to enable the trust of the public in the appointments
procedure.

55. Before it started with the ranking of candidates, the JAC 2019 adopted bye-laws on its rules
of procedure and on the method of ranking (see footnote 9). Articles 149/d (3) and 179 (11) of
the Constitution provide that “[t]he People's Advocate shall participate as an observer in the
selection by lot, as well as in the meetings and operations of the Justice Appointments Council.”
Nonetheless, the JAC adopted its Decision no. 4 on the verification of candidates of 6 August
2019 with a Rule no. 41 that reads: “[t]he discussions on the issue as well as the voting of the
decision shall be made only in the presence of the members of the Council.” As an observer,
the People's Advocate has of course no vote but Rule 41 excludes the People's Advocate from
the “discussion, voting and decision-making phase” (Rule 40).

56. Rule 39 gives the People's Advocate only the possibility to give „opinions and evaluations
regarding the mode of the procedure followed for the verification of the candidate”, that means
not on the merits of the ranking. It seems that the JAC argued that the People’s Advocate might
make public statements which could violate the secrecy of the JAC’s proceedings. This seems
not justified as the People’s Advocate would also be bound by the secrecy as concerns
individual cases but the People’s Advocate could make public comments on the proceedings in
general. As the discussions are a central part of the „operations” of the JAC, it would seem that
Rule 41 is contrary to the Constitution, respective legal provisions and the aim of ensuring public
trust in the procedure conducted by the JAC. The Venice Commission recommends to the JAC
2020 to change this Rule for the upcoming candidates’ verification and selection procedures.

57. Article 226(2)(d) of Law no. 115/2016 on governance institutions of the justice system provides
that the Chairperson of the Council shall ensure audio recordings of the meetings of the Council
and that a summary of the minutes of meeting of the Council is kept and published on the website
of the High Court. However, it seems that the summaries of the meetings were not published. This
is particularly regrettable because the People’s Advocate was excluded from the discussions
pursuant to Rule 41. The Venice Commission recommends that the summaries of the minutes of
the meetings of the JAC 2020 be published.

3. Ranking of candidates

58. Once the bye-laws were adopted, the JAC 2019 started to rank the candidates for the
vacancies at the Constitutional Court. As the JAC had to perform the vetting for the non-judicial
candidates, it had to examine huge volumes of files for each candidate. A high number of
candidates was excluded during this procedure. Several of them appealed against this decision to
the administrative court but their appeal was not upheld.

59. For the three vacancies belonging to the High Court, even after reopening of the application
procedures on 19 April 2019, due to a lack of candidates, it was not possible to establish a list
with at least 3 candidates for these vacancies. Therefore, the JAC prepared lists for four
vacancies belonging to the President and the Assembly.

60. On 21 September 2019, the JAC adopted four lists for four vacancies at the Constitutional
Court:
CDL(2020)011 - 14 -

Presidential vacancy Assembly vacancy Presidential vacancy Assembly vacancy

of 07/02/2018 – of 12/02/2018 – of 04/03/2019 – of 04/03/2019 –
JAC decision no. JAC decision no. JAC decision no. JAC decision no.
128: 130: 132: 134:
1. Ms Arta Vorpsi, 1. Ms Arta Vorpsi, 1. Ms Arta Vorpsi, 1. Ms Arta Vorpsi,
2. Ms Elsa Toska, 2. Ms Elsa Toska 2. Ms Fiona 2. Ms Fiona
3. Mr Besnik Muçi, 3. Mr Besnik Muçi Papajorgji, Papajorgji,
4. Ms Regleta 3. Ms Elsa Toska, 3. Ms Elsa Toska
Panajoti 4. Ms Marsida
Xhaferllari

61. Due to the paucity of the remaining candidates, on the four lists a total number of six candidates
figure in various compositions. This is due to the fact that some candidates had applied for several
vacancies. The relative order between the candidates is the same on all lists because the JAC had
ranked the candidates by points. All candidates rank relatively closely. The highest number of
points being 89.642 points and the lowest 82.000 points, i.e. with only some 9 percentage points
difference.

62. According to Article 125 (1) of the Constitution the candidates are selected “among the first
three ranked candidates by the JAC”. While Article 7/b (4) of the Law on the Constitutional Court,
seems to provide for sending the whole list (with the full number of candidates) to the President,
Article 7/c (5) obliges the JAC to send the names of exactly three candidates to the Assembly.

63. In addition, Articles 7/b (3) and Article 7/c (4) of the Law on the Constitutional Court provide
that “[w]here more than one vacancy exists, the Council shall draft two separate lists, one of which
shall contain the candidates coming from among the ranks of the judiciary.” This provision is hard
to understand. This provision would render the default mechanism for the appointment impossible
to implement. If the Assembly (or the President) did not elect/appoint a candidate within 30 days,
who should be deemed appointed by default, the person on top of the ‘judicial list’ or from the ‘non-
judicial’ list?

64. In practice, the JAC presented only one list for each vacancy. This is understandable given
the low number of suitable candidates.

4. Transmission of the lists

65. All four lists were adopted at the meeting of the JAC on 21 September 2019. The Chairperson
of the JAC sent two lists to the President by letter of 8 October 2019.

66. Following an exchange of letters with the Secretary General of the President’s Office, the Chair
of the JAC subsequently sent two lists to the Assembly on 14 October 2019.

67. In reply to the question by the delegation of the Venice Commission, why he sent the lists to
the Assembly six days later than those sent to the President, the Chair of the JAC replied that the
preparation of the full files that were sent together with the lists took longer. The members of the
JAC were not informed of this way of proceeding. The Venice Commission is not in a position to
examine whether the explanation given is plausible. In any case, it was clear that the date of
sending out the lists would have important consequences because of the potential application of
the appointment by default on the basis of the 30-days rule. The President brought criminal
proceedings against the Chair of the JAC.

68. In any case, the difference of six days had the effect that at the time when the Assembly
elected candidates for two vacancies on the same day, the President had appointed one member
of the Constitutional Court and suspended the appointment of a second member pending the
election of one member by the Assembly, referring to the sequence rule of Article 179 (2) of the
 - 15 - CDL(2020)011

Constitution. The Assembly, however considered that both the President and the Assembly were
entitled to appoint members for both vacancies simultaneously. According to this interpretation of
Article 179 (2) (see below) the President would not have appointed a candidate for his second
open vacancy and according to the default mechanism of Article 7/b (4) of the Law on the
Constitutional Court, the first ranked candidate of the second list (no. 132) would have been
appointed by default.

69. Following the President’s appointment of Mr Muçi on 15 October 2019, only two candidates
remained on the list under review by the Assembly, which seems not to be in line with the applicable
legal framework.

70. In conclusion, JAC’s modus operandi in 2019 is questionable. The combined effect of (a)
sending two lists simultaneously to the President (which meant that his 30-day time period, if
applied, would start to run for both lists at the same time), (b) sending out the lists to Parliament
six days later making it impossible to foresee both for the President and the Parliament which of
the identical candidates might be chosen from those lists at what point in time and thus not being
any more available for choice and (c) sending a total of four lists with only six candidates, in
combination with the decision made by the Assembly to appoint, after the expiry of the President’s
30-day time period, two candidates on the same day without giving an explanation to the President,
created a situation in which all appointments except the nomination of Mr Muçi were potentially
made in an unconstitutional manner.

F. Default mechanisms

71. The Venice Commission has repeatedly recommended the adoption of default mechanisms
for securing the full composition of constitutional courts because “the effective and continuous
functioning of the 'Guardian of the Constitution' has paramount importance for the country”11. The
Commission affirmed that “default mechanisms should be put into place, in the interest of the
Constitutional Court's institutional stability, and to avoid any institutional blockage. It is of the utmost
importance to ensure that the position does not remain vacant for a prolonged period of time after
the end of office of a judge. Rules of procedure on filling a vacant judge’s position at the
Constitutional Court should foresee the possibility of inaction by the nominating authority. There
should either be a procedure that allows the incumbent judge to pursue his or her work until the
formal nomination of his or her successor – this solution might require amendments to the
Constitution – or a provision which specifies that a procedure of nomination of a new judge could
start at least three months before the expiration of the mandate of the incumbent judge”.12

72. Albania has even two default mechanisms, namely the constitutional provision that a member
whose mandate has expired remains in office until the appointment of the successor (Article 125
(7) of the Constitution), and the already mentioned 30-day deadline rule (Article 128 of the
Constitution and Articles 7/b, 7/c and 7/ç of the Law on the Constitutional Court).

73. As concerns the candidate to be appointed by the Assembly, Article 125(2) of the Constitution
provides that “[t] he Assembly shall appoint the Constitutional Court judges by three-fifth majority
of all its members. If the Assembly fails to appoint the judges, within 30 days of the submission of
the list of candidates by the Justice Appointment Council, the first ranked candidate shall be
deemed appointed.” This provision is repeated on the legislative level in Article 7/c (6) of the Law
on the Constitutional Court.

74. This means that for the Assembly, a default mechanism exists on the constitutional level. If
the Assembly cannot elect a member within 30 days after the submission of the list by the JAC,

11CDL-AD(2006)016, para. 10.

12CDL-AD(2017)011, Opinion on the Draft Constitutional Law on the Constitutional Court of Armenia,
para. 23.
CDL(2020)011 - 16 -

the first ranked candidate becomes member ex lege. The introduction of such a mechanism on the
constitutional level makes sense because as a collegiate political body it may be difficult for the
Assembly to find the necessary votes.

75. The Constitution does not regulate the procedure concerning the appointment by the other
two bodies, i.e. the President and the High Court. However, the same default mechanism has
been introduced for them on the level of ordinary legislation. As concerns the President, Article
7/b (4) of the Law on the Constitutional Court states: “The President shall, within 30 days of
receiving the list from the Justice Appointments Council, appoint the member of the
Constitutional Court from the candidates ranked on the three first positions of the list. The
appointment decree shall be announced associated with the reasons of selection of the
candidate. Where the President does not appoint a judge within 30 days of submission of the
list by the Justice Appointments Council, the candidate ranked first shall be considered as
appointed.” Article 7/b (4) does not seem to be applicable in a situation where it is unclear when
and if the 30-days-period starts to run. The Venice Commission recommends that, if the default
mechanism for appointments by the President were deemed necessary (Article 7/b (4) of the Law
on the Constitutional Court), this rule should be raised to the constitutional level, as is the case for
the Assembly already.

G. Taking the oath

76. Article 129 of the Constitution adds that a judge of the Constitutional Court begins his/her duty
after taking the oath before the President of the Republic. The corresponding legal basis of the
oath ceremony can be found in Article 8 of Law No. 8577 of 10 February 2000 on the Organisation
and Functioning of the Constitutional Court of the Republic of Albania, which reads: “1. The term
of office of a judge of the Constitutional Court starts after he/she has been sworn in by the President
of the Republic. 2. The wording of the oath is: ‘I solemnly swear always to be loyal to the
Constitution of the Republic of Albania in fulfilling my duties’. […]”

77. This means that a member cannot take up his/her position without the taking of the oath by
the President. The oath before the President is therefore a precondition for taking up office.

78. It is unclear if this is a purely formal requirement or if it implies the competence for the
President to control if the rules in appointing/electing have been applied correctly. In any case,
as long as the President does not swear in a candidate s/he cannot start working.

79. This situation needs to be distinguished from that in Poland where the President of Poland
did not accept the oath of any of the so-called “October judges”. The Commission found that “108.
Government experts argue that this oath is decisive for the final validity of the appointment.
However, in contrast to the oath by Members of The Assembly (in the presence of the Sejm, Article
104(2) of the Constitution) and members of the Government (in the presence of the President of
the Republic, Article 151 Constitution), the oath of judges of the Constitutional Tribunal is regulated
only in the law on the Tribunal, but not in the Constitution itself. Against this legal background,
taking the oath cannot be seen as required for validating the election of constitutional judges. The
acceptance of the oath by the President is certainly important – also as a visible sign of loyalty to
the Constitution – but it has a primarily ceremonial function.” and “109. It must be recalled that the
judgment of 9 December 2015 held that the beginning of the judges of the Tribunal’s term of office
is their election by the Sejm (possibly a later date if the election process takes place before the
vacancy occurs), not the solemn moment of the oath-taking. This judgment must be respected.
Under the Polish Constitution, the Constitutional Tribunal and not the President is the final arbiter
in cases involving the interpretation of the Constitution. The President of the Republic and the other
State authorities have a responsibility to ensure the implementation of the Tribunal’s judgments.”13

13CDL-AD(2016)001, para. 108-109. In footnote 25, the Commission referred to the Marbury v. Madison
case. The US Supreme Court held inter alia that a judicial appointment is only completed “when the last
 - 17 - CDL(2020)011

80. An important basis for that opinion was thus that the Polish Constitutional Tribunal itself had
decided that the oath could not be regarded as ‘the last act’ required to validate an appointment.
Furthermore, the regulation was only contained in a law and not in the Constitution.

81. The present situation is also different from that in Ukraine, where under the applicable law at
the time, a judge of the Constitutional Court entered office from the date of swearing the judge’s
oath, which he or she took at a session of the Verkhovna Rada with the participation of the
President, the Prime Minister and the Chairman of the Supreme Court no later than one month
from the date of appointment. In October 2005, the term of office of ten justices of the Constitutional
Court of Ukraine, including its Chairman, came to an end.

82. The Verkhovna Rada did not only not elect the judges of its own quota but it also did not accept
the oath of candidates appointed by the President and elected by the judiciary. In that case the
Venice Commission called for “[t]he simplification of the taking of an oath by providing for a written
form of taking the oath or the introduction of an internal mechanism for swearing in”: “18. One of
the solutions in this respect could be taking the oath in a written form and submitting it to the
President of Ukraine or the Speaker of the Verkhovna Rada of Ukraine. 19. Another solution could
be providing for an internal mechanism to be established for swearing in. The option would consist
in enabling the newly appointed judges to be sworn in by the Chairman of the Constitutional Court.
In the case that the Chairman’s authority has ended, the possibility to be sworn by the Chairman
ad interim or oldest judge in office could be envisaged.” 14 The difference to the Albanian case is
that in Ukraine the oath taking procedure was regulated on the level of ordinary law only.

83. Referring to the Ukrainian opinion, the Albanian Assembly adopted an amendment to the
Law on the Constitutional Court on 12 February 2020, that allows for sending the oath in writing
to the President when s/he refuses to accept the oath within 10 days after the “date of election,
appointment or announcement of appointment”. The draft of the amendment contained a clause
foreseeing its application on pending cases, which was however removed before adoption.

84. The constitutionality of this amendment is doubtful as the Constitution clearly states that
the oath should be given “before” the President. In addition, the adopted provision is very vague.
What is the “announcement of appointment” and who is competent to make such an
announcement? Even if it could be the Constitutional Court, the context of the situation in
Albania excludes this possibility. Thus, the amendment creates uncertainty as to the legitimacy
of members starting to work at the Constitutional Court without being sworn in on the basis of
the procedure foreseen in the Constitution.

85. In practice, while the President accepted the oath of the candidates directly appointed by him
and those elected by the Assembly, the President did not accept the oath of the candidate who the
Assembly considers being appointed by default (Resolution of 15 November 2019).

86. However, the discussion on the form of oath (before the President or written) in this case is
secondary when the main question arises regarding the “legality” of the ex lege appointment of
the first ranked candidate. The real question is not whether the President accepted the oath of
the first ranked candidate but whether the 30-days deadline started to run in the first place. This
depends on the interpretation of Article 179 of the Constitution (see below).

act required from the person” making the appointment is completed. In that particular case this was the
President’s signature.
14 CDL-AD(2006)016, para. 18-19 and 21.
CDL(2020)011 - 18 -

H. Sequencing of appointments - Article 179 (2) of the Constitution

87. Article 179 (2) of the Constitution (transitional provision) provides a constitutional rule on
the sequence of nominations by the three respective bodies and regulates a procedure of
subsequent nomination of members: “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.”

88. This provision has to be seen in the light of the system of the partial renewal of the Court
every three years (see section IV.A above). In normal times, given that the mandates of the
members are fixed, every three years three positions will become vacant, one of which to be
filled by the President, one by the Assembly and one by the High Court. Article 7 (2) of the Law
on the Constitutional Court provides that “The composition of the Constitutional Court is renewed
every 3 years by 1/3 of its composition. The new members shall be appointed according to the
sequence, respectively by the President of the Republic, the Assembly, and by the High Court.
This rule shall be followed even in the event of early termination of the mandate of the Constitutional
Court member.”

89. As concerns the sequence of appointments, diverging lines of arguments have been
developed in Albania. The a priori obvious interpretation (A) would be that Article 179 (2)
requires a strict sequence of the appointments, one by the President, the next by the Assembly,
the next by the High Court and then it would be the President’s turn again. This seems to be the
obvious logic of Article 179 (2) and in line with a literal interpretation of the provision.

90. However, this interpretation can be functional only when there is a regular replacement of
three members of the Constitutional Court every three years. It does not provide for a solution
in case the mandate of a member terminates prematurely, for instance because of resignation,
illness or death of the member.

91. The premise on which the provisions on the composition of the Constitutional Court are based
is that the Court includes nine members, of which each of the three institutions appoints three.
Thus, there is a (quantitative) balance between members appointed by the President, the
Assembly and the High Court. Interpretation (A) could – and most probably would – lead to shaking
the balance and to, for instance, a situation of where, say, five of the members are appointed by
the President. Thus, an interpretation of the sequence rule should be adopted which is in harmony
with the basic premise – the institutional balance - which the provisions on the composition reflect.

92. In addition, interpretation (A) does not function properly when one of the State organs is
dysfunctional as is currently the case with the High Court. In this situation, the President could
appoint one member, the Assembly one and then the procedure would stop in the absence of
the High Court. It could only be argued that in such an exceptional situation, the rule of necessity
would apply and that the other two powers, the President and the Assembly, should continue
with appointing their members in alternance.

93. According to another interpretation (B) of Article 179 (2), this provision determines the
sequence of the right to appointment rather than the sequencing of the appointments. The
sequence of the right to appointment puts the emphasis on the clause “the first member to be
replaced” rather than the clause “shall be appointed” in Article 179 (2). According to this
interpretation any vacancy could be filled when it comes up without having to wait for other
appointing bodies.

94. According to this interpretation (B), the intention of the drafters was to create fixed ‘President’s
positions’, ‘Assembly’s positions’ and ‘High Court’s positions’ and to ensure, that a given position
 - 19 - CDL(2020)011

is filled by the President/Assembly/High Court, independent from whether a position holder

exhausts his/her full mandate or not.

95. Hence, Article 179(2) would aim at designating the organ to which the vacancy pertains which
needs to be filled. This provision would thus guarantee that no shift of the right to appoint for the
respective position can occur. Irrespective of when the mandate of the first vacancy terminates this
position will always remain a ‘President’s position’, i.e. the President has the right of appointment.
This would ensure an equilibrium between the three appointment bodies.

96. If for example a member appointed by the Assembly resigns after his/her first year of mandate
the interpretation (A) requiring a rotation of the appointments leads to the conclusion that that this
position would have to be filled by the President who is the next in line for filling a vacancy.
Interpretation (B) would lead to the conclusion that it is the Assembly again who can replace the
member it had elected for the remainder of his/her mandate.

97. According to interpretation (B), the 2016 reform intended to remove the interdependence of
two institutions (President and Assembly) and to allow them to appoint / elect member
independently from each other.

98. However, if such a system of ‘reserved’ positions had been intended this could have been
expressed more clearly and without referring to a sequencing of appointments. Interpretation B
could in addition mean that one appointing body is compelled to appoint three candidates in a row.
Such a reading would be opposite to the literal meaning of the provision.

99. Building on these arguments, the Venice Commission prefers interpretation (C) according to
which the sequence rule of Article 179 (2) of the Constitution and Article 7 (2) of the Law on the
Constitutional Court only applies within a given round of appointments (see section IV.A above).
The constitutional rule is based on the assumption that always three positions have to be filled at
the same time and the sequence therefore applies only within this round of appointments. As a
consequence, the absence of the election of a member by the High Court, which comes last in
each round, therefore does not block appointments for another round. Even though the High Court
cannot elect its member, the President shall start afresh with an appointment of one member in
another round, which is to be followed by an election of one member by the Assembly. The
President and the Assembly should continue with appointing their members in alternance. Once
the High Court is established it can catch up and make its outstanding elections. From then on, the
regular rotations can take place and the sequence rule should be applied for all three upcoming
vacancies in a given year.

100. The clear preference of the Venice Commission for interpretation (C) does not mean that the
other interpretations would be unreasonable. In any case, when he appointed only one candidate,
Mr Muçi, and then suspended the procedure for appointing a second candidate, the President
followed an interpretation which is not unreasonable and can be argued. Under interpretation (C)
the suspension of the second appointment was valid and blocked the start of the 30-days period
for the second appointment so that the appointment by default did not materialise.

I. Impeachment of the President

101. Further to the recent Opinion of the Venice Commission on the powers of the President to
set the dates of elections15, this is the second opinion where the Venice Commission is called to
examine a situation in which an impeachment procedure has been launched against the President
of Albania. It is, therefore, worth recalling elements of that opinion.

15 CDL-AD(2019)019.
CDL(2020)011 - 20 -

102. The Commission found that “[t]he impeachment process involves both legal and political
aspects and phases. The work of the Special Investigation Commission is mainly of a legal nature.
By contrast, when the plenary Assembly decides whether to impeach the President, it may – and
even should – take into account also the political repercussions of its decision.”16

103. The Commission added that “even if ‘serious violations of the Constitution’ (the Constitution
uses the plural) were established, the Plenary Session also takes into account the opportunity of
impeaching the President and can refrain from doing so. The Venice Commission cannot advise
on this issue, but it will be for the Plenary Session of the Assembly to decide whether an
impeachment would reduce or increase tensions and ultimately serve or frustrate the goal of mutual
checks and balances in a situation where The Assembly and all municipalities are dominated by
one party. The question therefore for the Assembly may be: would the pursuit of such an
impeachment option serve the unity of the people?”17

104. According to the analysis provided above, the President’s actions are generally compatible
with a reasonable interpretation of the Constitution. In light of the interpretation (A) of Article 179
(2) of the Constitution set out above, the actions taken by the President (and his Office) in response
to the modus operandi by JAC seem reasonable. Thus, there is no basis for an impeachment of
the President.

J. Loyal cooperation

105. The stalled process of appointment of the Constitutional Court’s members reveals major
difficulties in enforcing the Constitution and the law in force. These depend to a large extent to
institutional conflicts, due to mutual distrust between the state powers and their tendency to
delegitimize each other. The country’s institutional system risks a paralysis going far beyond the
issue of the Constitutional Court’s members’ appointing procedure.

106. While all actors stress their own loyalty to the Constitution, they accuse the other side of
violating the constitutional provisions. Due to the non-existence of the Constitutional Court these
conflicts cannot be settled by the organ competent to do so.

107. The Venice Commission cannot replace the Constitutional Court. The assistance of the
Venice Commission can neither cure nor replace the lack of willingness and culture of
cooperation among the Albanian institutions. For unlocking the appointing procedure, a different
avenue must be chosen. Aggressive rhetoric should be avoided, and each institution should
recognise the legitimacy of the other institutions in appointing the three Constitutional Court
members.

108. A thorough reflection should be made by the relevant institutions with respect to the strong
need for a ‘bilateral disarmament’ on the issue, for the sake of the Albanian democracy. There is
a need for real dialogue and cooperation between institutions to guarantee constitutional loyalty.

V. Conclusion

109. It is of vital importance for Albania to restore the Constitutional Court and the High Court as
quickly as possible, even more so in a time in which highly complex questions pertaining to the
constitutionality of public affairs in Albania present themselves. A number of cases pending at the
Constitutional Court cannot be adjudicated. To overcome this crisis, constructive interinstitutional
dialogue and cooperation between the State institutions is required.

16 Idem, para 90.

17 Idem, para. 93.
 - 21 - CDL(2020)011

110. The constitutional crisis in Albania has not been caused by one specific act, but is the
consequence of the interplay of several factors:
• the vetting procedure had more pervasive effects than originally foreseen;
• also as a consequence of the comprehensive vetting procedure the High Court and the
Constitutional Court have been rendered dysfunctional;
• there is fundamental obstruction between the Government/Assembly and the President
that seems to be difficult to overcome (with an on-going impeachment procedure on the
one hand and criminal complaints on the other hand);
• due to the long inactivity of the JAC in 2017 and 2018 there are many vacancies at a
time. With almost no suitable candidates there is little choice for those
appointing/electing the Constitutional Court members;
• the JAC’s modus operandi in 2019 was questionable;
• the problems in applying ambiguous (constitutional) provisions have been aggravated
by the fact that there is no Constitutional Court and by the fact that the procedure has
become the subject of the fight between the Government/Assembly and the President.

111. In order to overcome the stalled situation, the Venice Commission makes the following
recommendations, first as concerns the vetting:
• While the reform of the judiciary and the vetting procedure remain a priority and have to
be brought to a good end it should be evaluated if the rules as applied (e.g. requiring the
justification for money earned by the person concerned and all his or her family members
for a period of time much longer than any tax laws require documents to be conserved)
lead to good solutions or do not give too much room for political manipulation.
• In order to ensure the same standards of vetting for call candidates for membership in the
Constitutional Court, the vetting of non-judicial candidates shall be attributed to the
Independent Qualification Commission and the Special Appeal College instead of the JAC,
as is it the case now.
• The vetting of judges and prosecutors should be accelerated by the Independent
Qualification Commission and the Special Appeal College.
• On the other hand, in reasonable cases, too rigid and unrealistic time limits for providing
documentation should be re-opened.

112. As concerns the procedure of the JAC:

• JAC 2020 should change Rule 41 of JAC Decision no. 4 for the upcoming candidates’
verification and selection procedures.
• The summaries of minutes of all meetings of the JAC should be published.
• JAC should adopt its ranking only when the files of all candidates on the list are complete
and the Chair of the JAC should then send the lists together with the files immediately to
the respective state body without any further delay.
• The JAC should not propose candidates who have not yet passed the vetting.

113. As concerns the sequencing rule of Article 179 (2) of the Constitution:
• Article 179 (2) of the Constitution and Article 7 (2) of the Law on the Constitutional Court
only apply within a given round of appointments. The President and the Assembly should
continue with appointing their members in alternance.
• If the default mechanism for appointments by the President were deemed necessary
(Article 7/b (4) of the Law on the Constitutional Court), this rule should be raised to the
constitutional level, as is the case for the Assembly.

114. As concerns the oath taking procedure:

• The recently adopted but not yet enacted provisions on a default mechanism for taking
the oath by sending a letter with the oath to the President in case of a refusal by the
President to accept the oath should be abandoned as they seem to be unconstitutional.
CDL(2020)011 - 22 -

115. Finally, the important legal ambiguities (first, as to the necessity of vetting for the members
of the JAC, second as to the length of the mandates of the members’ positions attributed to the
President, the Assembly and the High Court respectively, third as to the consequences of the
sequencing rule of Article 179 (2)), should be solved in the light of this opinion.

116. The main problem why the situation deteriorated is not the diverging interpretation of
Article 179 of the Constitution and other provisions but the absence of dialogue and loyal
cooperation. Both sides agree to this in principle but insist that only they exercise such loyalty but
not the other side. Both sides should refrain from aggressive rhetoric. Many of the problems
could be solved by means of cooperation between institutions, as has been pointed out several
times by the Venice Commission. As the President of the Venice Commission recently insisted
in respect of Armenia: “Democratic culture and maturity require institutional restraint, good faith
and mutual respect between State institutions.” 18

117. The Venice Commission remains at the disposal of the Albanian authorities for further
assistance in this matter.

18 Public statement by the President of the Venice Commission of 3 February 2020 regarding Armenia,
https://www.venice.coe.int/webforms/events/?id=2892.