The President of the Constitutional Court, Holta Zaçaj, has announced this Tuesday that she will turn to the Venice Commission to request an interpretation on the continuation of her mandate at the head of the Constitutional Court.
In a press release, President Zaçaj clarified that she began her duties as a member of the Constitutional Court on January 25, 2023 and succeeded former judge Vitore Tusha in this position, who completed her term on March 10, 2017. She emphasized that, according to the Constitution, a judge replaced to fill the mandate of a retired judge must remain in office until 2025.
In accordance with this constitutional provision, the Supreme Court has also confirmed her election for a partial mandate until 2025, but neither the Constitution nor the decision of the Supreme Court determine an exact date for the end of her mandate. Holta Zaçaj has explained that March 10, 2017, when the mandate of Vitore Tusha ended, cannot be considered as the date of the end of her mandate. She has requested a clear interpretation from the Venice Commission on this matter, stressing that this would help resolve similar situations in the future.
The President of the Constitutional Court has assured the public opinion that she will respect every decision of the Venice Commission, which will be made public and will guide the manner of ending her mandate.
CONSTITUTIONAL COURT’S ANNOUNCEMENT:
Triggered by several articles in the media regarding the declaration of the end of my mandate as a judge of the Constitutional Court, in consideration of the responsibilities that the law recognizes me as President, for the submission of the request for the declaration of the end of the mandate of the constitutional judge, in the evaluation my, the situation regarding the duration of this mandate is presented as follows:
Judge Holta Zaçaj began to exercise her duties as a member of the Constitutional Court on January 25, 2023 and succeeded Judge Vitore Tusha, who completed her duties as a constitutional judge on March 10, 2017.
The mandate of judge Holta Zaçaj is regulated by article 179, point 3, of the Constitution, which provides that, 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.
On the basis of this constitutional provision, the Supreme Court in its decision no. 2, dated 16.01.2023 stated: “The election of Mrs. Holta Zaçaj as a member of the Constitutional Court with a partial mandate until renewal in 2025.”
Given that, neither the constitutional provision, therefore nor the decision of the Supreme Court for the election of the constitutional judge, has a date determined for the completion of this task, based on the general legal rules for the calculation of deadlines, as a deadline of the exercise of the duty will have to be considered the end of 2025.
The date of the end of the office of the previous judge, in cases where he has completed the full mandate, is not referred to by the Constitution or the law as a legal event, which also determines the end of the mandate of the subsequent judge.
Even in institutional practice, it does not appear that such a rule has been applied in determining the date of completion of the exercise of the duty of constitutional judges.
Consequently, the date March 10, 2017, which refers to the date on which Judge Vitore Tusha finished her duty, is not decisive for the termination of Ms. Holta Zaçaj as subsequent judge.
Despite the above, taking into account the importance of the principle of the duration of the mandate of the constitutional judge, triggered by this case but also, eventually, to prevent similar situations in the future, I have considered immediately addressing the Venice Commission, as an advisory body, for obtaining an amicus curiae opinion regarding the interpretation of the constitutional term of office of constitutional judges in general and, in particular, according to the provisions of Article 179, point 3, of the Constitution.
I wish to assure public opinion that, in my capacity as President of the Constitutional Court, I will exercise my responsibilities to move the Court in accordance with the opinion of the Venice Commission, which, like the request for amicus curiae, will becomes public.
I take the opportunity to bring to attention and request from every other body to respect the independence of the constitutional judges, as well as the Constitutional Court itself in the exercise of the competence to declare the end of the mandate of these judges.
As it has been emphasized in the constitutional jurisprudence: “The guarantee of the duration and inviolability of the mandate protects the judge from the influence of political forces that may come to power. Only an independent court, which is guaranteed the inviolability of the mandate of its members, can be considered as a court that administers constitutional justice, in accordance with constitutional principles. Although the mandate of the constitutional judge has the meaning of a given mandate (not obtained through the vote of active voters), the principle of independence also means that the judge, at the time of appointment, must know the duration of this mandate, based on the relevant legal regulations, and this duration cannot be left to the discretion of the bodies that appointed/elected him”. (Decision of the Constitutional Court no. 24, dated 09.06.2011, paragraph 31).
