Clashes with the Supreme Court, VOA: Zaçaj backs down, demands declaration of end of mandate

In Albania, the President of the Constitutional Court, Holta Zaçaj, called the members of the court today to declare the end of her mandate, thus marking her withdrawal from a matter that had led to a strong clash with the Supreme Court. The latter yesterday began the procedures for her replacement. An act that Ms. Zaçaj considered in violation of the Constitution, given that, as she told Voice of America, the end of a judge's mandate is declared by a decision of the Constitutional Court.

While the two most important institutions of the judicial system in the country, the Constitutional Court and the Supreme Court, had entered a collision course due to the interpretation of the mandate of Judge Holta Zaçaj, also the President of the Constitutional Court, a move today by the latter seems to avoid the conflict. Through a letter addressed to the body of members of the Court, Ms. Zaçaj, after explaining the entire situation created and her position on the matter “in my capacity as President of the Constitutional Court, in the public interest, to avoid a constitutional dispute, in accordance with my powers, but also in the exercise of my responsibilities as a member of this Court, I formally address you with a request to declare the end of my mandate as a judge of the Constitutional Court”. The body of judges met today, without reaching a decision, and is expected to meet again tomorrow.

Ms. Zaçaj was appointed in January 2023, succeeding Judge Vitore Tusha, whose mandate had ended on March 10, 2017. Her appointment was included in the scheme provided for in the transitional provisions of the Constitution, which guaranteed the renewal of the Court every three years, with three members.

According to the Supreme Court, Ms. Zaçaj's mandate ends on March 10, 2055 and therefore, on December 10, she should have declared the end of her mandate and notified the Supreme Court as the appointing body, noting the fact that Ms. Zaçaj was aware of the date, as she had been notified in two vacancy announcements for the case, and that she herself had referred to this date in her application.

But Ms. Zaçaj told Voice of America that in her public statement two days ago she had not denied knowledge, but that "when I act as president, I have to ascertain legal events that the law determines for me, I cannot deal with the notification. The constitutional provision, article 179, point 3, assigns me only one year, which is 2025, and within the constitutional framework, in the appointment decision, I again do not have a date. But it says "until the renewal in 2025". So I do not have a date either in the Constitution or in the decision".

Ms. Zaçaj further emphasizes that "the dates of the announcements cannot coincide with the end of the term of office, due to the fact that for the judge who has taken the oath, the date of the end of the mandate will be a different date than the one announced by the Supreme Court", citing the case of Judge Ilir Toska as an example.

For this reason, to calculate the end of her mandate, she says that she referred to Article 148 of the Code of Civil Procedure, which talks about the calculation of deadlines. In its interpretation, she states that she was completely convinced that her mandate should end at the end of 2025, and therefore there was no reason to initiate the procedure for declaring the end of the mandate.

But the Supreme Court considered this as a failure to fulfill its obligation by the Constitutional Court and yesterday declared the vacancy for Ms. Zaçaj's position. "The Supreme Court, as the appointing body, is charged by Article 125, point 1 of the Constitution to exercise its exclusive competence for the election of the member of the Constitutional Court, without being hindered by any other constitutional body," the announcement signed by President Sokol Sadushi states.

For Ms. Zaçaj, this act of the Supreme Court "is in violation of the constitution because the end of the mandate of a member of the Constitutional Court is declared by a decision of the Constitutional Court. Mr. Sadushi cannot declare a vacancy without respecting the Constitutional Court. Today we are in conditions where the appointing body decides on its own and says I don't ask at all," she tells Voice of America, adding that she considers "the precedent of affecting the mandate of a judge to be serious, especially since the ambiguity is evident."

On this issue, she has requested the interpretation of the Venice Commission, using “the competence that my duties as President of the Court give me”. The reason for this decision, according to her, “is related to the need to have an interpretation of the case when the date of the end of the mandate of a judge is considered the date of the start of the subsequent judge”, as considered by the Supreme Court in her case with the mandate of Ms. Tusha.

Ms. Zaçaj insists that her position "is not related to 7-8 more months of my mandate, but to the possible effects on other mandates, such as that of the resigned member Elsa Toska, or member Sonila Bejtja, and potentially on the mandate of judge Sandër Beci," Ms. Zaçaj explains to Voice of America, adding that "in order not to put the two institutions in conflict, we should take it to the Venice Commission."

Although she has stuck to her position, even in her request to the body of members, the decision to declare the end of her mandate may now make the involvement of the Venice Commission unnecessary. VOA