Accuses the Supreme Court, Holta Zaçaj informs the Constitutional Court of the end of the mandate

The President of the Constitutional Court, Holta Zaçaj, seems to have taken a step back. After addressing the Venice Commission, this Thursday she called a meeting of judges to declare the end of her mandate. In the announcement sent by herself, it is stated that there was no decision-making at the meeting and the session was postponed for the next few days.

In the announcement, the President of the Constitutional Court clarifies the allegations regarding her mandate, insisting that it ends at the end of 2025.

"I clarify that I am not a substitute judge for Judge Vitore Tusha, so I was not elected within the latter's 9-year mandate, which she has completed and completed for the entire time provided for by the constitutional norm (ie for 9 years). I have been elected to office in a new constitutional mandate that for objective reasons, due to delays in the procedures, began to be exercised late but that, exceptionally from the usual rule of the duration of the office for 9 years, was defined as limited due to the special provision of Article 179, point 3, of the Constitution", the announcement states.

Zaçaj also accuses the Supreme Court of having acted contrary to the law.

"The announcement of a vacancy by the Supreme Court, without a decision of the Constitutional Court, has stripped the latter of its constitutional competence, this action is unprecedented and taken with an urgency unjustified by the public interest or force majeure, for which it was requested immediate intervention", the announcement reads. 

According to Holta Zaçaj, in no case in the 32 years of operation of the Constitutional Court has there been a practice in which the deadline for the end of the mandate of the succeeding judge was the end date of the previous judge.

Press Release/Statement

The President of the Constitutional Court calls the Meeting of Judges to declare the end of her mandate

"The Constitutional Court must be free from political and media pressure so that its function as a defender of constitutional principles is strong and reliable"

Based on the unprecedented media attacks directed at me personally as President of the Constitutional Court, I issue this press release to clarify public opinion regarding the term of my tenure, based on my responsibility in my role as the guardian of the Constitution over which I am I swear and I answer.

I clarify that with the decision no. 19, dated 10.03.2017, the Constitutional Court has declared the end of the mandate of judge Vitore Tusha, which constituted the legal basis for the naming body to announce the candidacy procedures for the election of the next judge.

Due to the announcement and re-announcement of the call for candidates by the Supreme Court, in the capacity of the nominating body, finally, after the completion of the evaluation and ranking procedures of the candidates, the Judicial Appointments Council forwarded the list of ranking candidates to the Supreme Court , together with the relevant report and documentation.

The Special Meeting of Supreme Court Judges, with decision no. 2, dated 16.01.2023, decided: "The election of Mrs. Holta Zaçaj, member of the Constitutional Court with a partial mandate, until the renewal in 2025".

On 25.01.2023, I began to exercise my duties as a member of the Constitutional Court after taking the oath before the President of the Republic.

I clarify that I am not a substitute judge for Judge Vitore Tusha, that is, I was not elected within the latter's 9-year mandate, which she has completed and completed for the entire time provided by the constitutional norm (ie for 9 years ). Although that judge has chosen, in the following, to remain in office until the reception of her successor, this is permissible for the constitutional judge according to the provisions of Article 125, point 7, of the Constitution in order not to hinder the functioning of this Court.

I have been elected to office in a new constitutional mandate that for objective reasons, due to delays in the procedures, began to be exercised late but that, exceptionally from the usual rule of the duration of the office for 9 years, was defined as limited due to the special provision of Article 179, point 3, of the Constitution.

I remind you that Article 125 of the Constitution has sanctioned that the judge of the Constitutional Court remains in office for 9 years, without the right to reappointment, except when the Constitution itself has determined a different date or a limitation of the constitutional mandate, such as the case of mandates limited by The Constitution according to the provision of the third paragraph of Article 179 of the Constitution. This is exactly the case of my mandate, which is limited by this transitory provision according to which "In order to regularly renew the composition of the Constitutional Court, the judge who will replace the judge whose mandate ends in 2017, will remain in office until 2025".

So the time limitation of my mandate comes from the Constitution itself and not from the hypothetical interruption in the middle of the mandate of the member Vitore Tusha, as is being anathema in the media. It is the mandate of that judge that ended on March 10, 2017. This date does not determine either the beginning or the end of the mandate of her successor, which in principle is a constitutional mandate that ends in 2025 (as above, Article 179, point 3) .

I would like to point out that the naming body itself, regardless of how it has announced the full vacancy for the following mandate, in its decision on my election as a constitutional judge declares that the mandate is partial "until the renewal in 2025" .

The fact that this mandate is partial does not mean that it is "replacement" but that this mandate, except for the constitutional rule, was impossible to exercise for a full duration of 9 years, even in the best case, that is, even if I would have been elected immediately after the end of Ms. Tusha, that is, within 2017.

I declare that at the time of my candidacy I was aware and accepted that I was running for an incomplete mandate that, according to the constitutional norm, ended in 2025.  

A different position would make point 3 of Article 125 of the Constitution inapplicable, which does not refer to "mandate" but to "stay in office", i.e. for the effective time during which the constitutional judge exercises this constitutional function, and will to imply that in any case the beginning of the tenure of the subsequent judge is linked to the end of the preceding judge, which does not result from the content and spirit of the constitutional provisions (Article 125, point 3 and article 129 of the Constitution), from the practice of this Court since 1998, nor from the way of exercising and calculating the mandate of Judge Vitore Tusha herself.

A different position would mean the implementation of fixed dates of the beginning and end of the duty, that is, that the constitutional judge has determined a priori the beginning and end of the time of exercising his duty, even though it is determined according to the constitutional norm by a defined legal event.

Given that, neither the constitutional provision, therefore nor the decision of the Supreme Court for my election to office, has a date determined for the end of this duty, based on the general legal rules for calculating deadlines, such as the deadline for the end of exercise of the duty is the end of 2025. Article 148 of the Code of Civil Procedure, to which we also refer according to the specific regulations of the organic law and the Regulation of the Constitutional Court, provides that "When the deadline is determined by days and hours, excluding the day and hour in which the event began or the time from which the term should begin. The term that is set in weeks, months or years ends with the passing of that day of the last week or the last month that has the same name or number as the day the term started. When such a day is missing in the last month, the term expires with the passing of the last day of this month".

Found in the conditions of the public stay of the Supreme Court, dated December 6, 2024, based on the fact that the constitutional provision and the decision of my election as a member of the Constitutional Court did not have a specified date, but only the year in which the time of stay ended in office, I decided that on December 10, 2024, I will turn to the Venice Commission to request an amicus curiae opinion, considering not only that in the case concretely, issues related to constitutional principles, which have been previously discussed by the Venice Commission, which carry public interest and will serve this Court in the future as well, are presented for discussion and interpretation, as well as to avoid constitutional disputes that may be caused by interpretations of constitutional norms that may conflict with the principles and powers sanctioned in the fundamental law.

I take this opportunity to inform you, based on the publication of my application letter dated February 25, 2022, that it refers to the terms of notification of vacancies announced by the Supreme Court, which at that time had announced 3 such with an end date, of which 2 partial vacancies and 1 full vacancy.

I would like to emphasize that regarding this last vacancy, the date specified in the announcement does not coincide with the end date of this mandate, since the oath of the constitutional member was taken in September 2022, therefore, according to the content of articles 125, point 3 and 129 of the Constitution, the term of office of this judge ends in September 2031, i.e. on a date different from that specified in the announcement. I bring this example to show that the dates specified in the announcements of vacant positions and used in the application are not decisive for the end of the mandate, the calculation of which is based on the constitutional provisions and the legal event of the oath.

On the other hand, the Supreme Court has not shown what is the legal basis that determines that the date of the end of the mandate of the previous judge is the reference date (day and month) in which the mandate of the successor judge also ends.

Meanwhile, it seems that the date 10 March 2025, as the date of the end of my mandate, taken as a reference by the Supreme Court in the announcement of the vacancy dated 11.12.2024, is the same day/month as the day and month of the end of the stay in the office of Mrs. Vitore Tusha (March 10, 2017). I clarify to the public that in no case in the 32 years of operation of the Constitutional Court has there been a practice in which the deadline for the end of the term of office of the succeeding judge was the date (day and month) of the end of the previous judge.

From the above, it is clearly legible that the Constitutional Court was not allowed to exercise its competence and the Supreme Court acted in open opposition to the provisions of Article 127, point 2, of the Constitution according to which "End of the mandate of the judge of The Constitutional Court is declared by the decision of the Constitutional Court". The declaration of a vacancy by the Supreme Court, without a decision of the Constitutional Court, has stripped the latter of its constitutional competence, this action is unprecedented and taken with an urgency unjustified by the public interest or force majeure, for which intervention was required immediate.

Moreover, found in the conditions of an atypical mandate, where a mandate limitation coming from the new constitutional provisions will be applied for the first time, in case there are dilemmas or questions, it is only the Constitutional Court that can interpret the Constitution, competence this, which in this particular case was used by the Supreme Court in excess of its powers and in exercising the powers of the body that according to the Constitution also makes its final interpretation, the Constitutional Court.

From the above, in the name of the public interest, in defense of the institution I lead, and to avoid constitutional disputes, today on December 12, 2024 I decided to address the Meeting of Judges in the exercise of my responsibilities as a member of this Court, for declaring the end of my mandate as a constitutional judge. The body of the Constitutional Court met today without reaching a decision, postponing the session for the following days.

At the end of this statement, which I ask you to reflect correctly with all the facts presented, allow me, as the President of the Constitutional Court, to remind you and all the institutions of this country that:

The security of the constitutional mandate is essential for democracy itself. Without an independent body such as the Constitutional Court, which checks the legitimacy of laws and acts of the state, there is a risk of undermining the balance of powers.

When the Constitutional Court is free from political, media and economic pressure, its function as guardian of constitutional principles is stronger and more reliable. This not only protects the individual, but also maintains citizens' trust in democratic institutions.

Moreover, the security of the mandate guarantees that every decision taken by the Court is based on the law, without fear of political and media consequences. This is a fundamental principle for a legal system that wants to be fair and equal for all.

  (A2 Televizion)