Venice Commission Sides with Albanian President on Constitutional Judge Appointment 

The Venice Commission (VC) has found President Ilir Meta’s decisions in line with the Constitution, and has disputed those of the Justice Appointment Council (KED) in relation to the conflict over the appointment of judges to the Constitutional Court.

The four experts of the Venice Commission finalized their draft opinion on Friday, May 29. It will be submitted to the VC for voting in a plenary session in the coming days.

Exit News has read the full document sent to the Parliament for comment by the Venice Commission.

On December 30, the Parliament asked the Venice Commission for an opinion on the appointment of members of the Constitutional Court by President Meta, namely the appointment of Marsida Xhaferllari instead of Arta Vorpsi, whom KED Chair Ardian Dvorani and the Socialist Party claimed was automatically appointed after President Meta silence.

The draft opinion states that, given the lack of clarity of the procedures and special circumstances created for the appointment of the second candidate of the Constitutional Court, which should have been done by the President, the suspension by the President of the procedure of nominating the candidate was legal and justified.

 The same applies to the President’s refusal of the KED decision to automatically appoint Arta Vorpsi. The President acted legally by appointing and taking the oath of Marsida Xhaferllari as Constitutional Court member, and not that of Arta Vorpsi.

Article 99 of the draft opinion states that:

The President, by his Act of 5 November 2019, had suspended the appointment procedure before the expiry of the 30 days limit fixed by the law.

While such suspension is not envisaged by the Law, it was a reaction to a situation of legal uncertainty, which could not be resolved in the absence of the Constitutional Court.

The suspension showed that the President did still wish to exercise the appointment power he enjoys under the Constitution and this was confirmed by his appointment of a candidate shortly after the election of the Assembly’s candidate.

Under these circumstances, the ratio legis of the default clause did not apply and it seems justified to accept the belated appointment of a second candidate by the President. It therefore seems justified that the President refused to take the oath of the judge allegedly appointed by default.

The draft opinion also invalidates Arta Vorpsi’s attempt to take the oath before a notary instead of before the President.

Article 100 of the draft opinion states that taking the oath physically in front of the President is mandatory for taking up office:

“While it is unclear if this [taking the oath] 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, it is clear that taking the oath before the President is a precondition for taking up office.”