In a letter to the Constitutional Court, Besnik Muçi has stated that the verdict of the Special Appeal Chamber (KPA) to dismiss him from office does not have the legal power to dismiss him as member of the Constitutional Court. Muçi was vetted as a prosecutor, but had been appointed judge at the highest court of Albania in the meantime.
The transitory dispositions of the Constitution, art. 179/b(3) state that all prosecutors are reassessed ex officio. This is also what has happened to Muçi. Furthermore, art. 179/b(7) states that “Failure to successfully pass the re-evaluation process constitutes a ground for the immediate termination of the exercise of functions.” However, by the time Muçi was dismissed, he was no longer prosecutor – the office on the basis of which he was vetted – but had been appointed Constitutional Court judge.
Muçi claims that therefore the KPA has no authority to dismiss him from office, since he was not vetted ex officio of a judge at the Constitutional Court.
Constitution art. 128(3) states that
The Constitutional Court judge shall be suspended from duty by decision of the Constitutional Court when:
a) Upon him/her is imposed the personal security measure of “arrest in prison” or “house arrest” for commission of a criminal offence;
b) He/she obtains the capacity of the defendant for an offence committed intentionally;
c) Disciplinary proceedings being initiated under the law.
In other words, only the Constitutional Court can judge whether Muçi can be suspended from duty, and not the KPA. This position was also recently confirmed by the Constitutional Court itself in the case of the appointment of Marsida Xhaferllari.
As a result, Muçi requested the Constitutional Court to investigate whether his mandate indeed had finished. This will also mean that for the moment 2 of the 5 members of the new Constitutional Court are “disputed.”