Xhaçka's mandate/Spiropal's letter to the Venice Commission

2024-09-13 15:43:00, Aktualitet CNA

The President of the Assembly, Elisa Spiropali, addressed a letter to the Venice Commission, asking for an opinion regarding the mandate of MP Olta Xhaçka.

In the letter, it is requested that Venice provide answers to some questions, to which the majority and the opposition have given different interpretations regarding the validity of Xhaçka's mandate.

The answer to these questions would help the Assembly to respect and correctly apply the constitutional principles and standards

Spiropal's questions

"Given that a tension has been created in the functioning of representative democracy, I believe that it is necessary to receive an opinion from your honorable Commission, believing that your expertise would help the Assembly to respect and correctly apply constitutional principles and standards. In this sense, we would appreciate the opinion of the Venice Commission on these questions:

1. Based on the principles of representative parliamentary democracy, can MPs be forced to vote in a certain way? If there are such exceptions, what are they and are they relevant to the case of motions for the compatibility of the mandate of an MP? What is the mechanism, if any, to force MPs to vote a certain way (for, against, abstention)?

2. What are the standards for determining the incompatibility of the mandate of the deputy by the legislative bodies of different states and what is the role of the respective legislative body in determining the incompatibility of the mandate of the deputy?

3. On the basis of which standards will the relationship between the representative, non-binding mandate that MPs enjoy and their role as members of the Assembly have to be interpreted in the case of considering motions for the incompatibility of the mandate of the MP?

4. What is the role of the legislative body regarding the finding of incompatibility of the mandate of the deputy in other states and is there a judicial control over their decision-making? If so, in what relation is the competence that the legislative body has in this procedure compared to the competence of the relevant court? Which of these bodies exercises essential control of the motion to establish the incompatibility of the mandate of the deputy? What is the entity that is legitimized to send the case to the designated court?

5. Can the Constitutional Court create a new constitutional norm, which is not related to its interpretive competence of an existing norm? Can the Constitutional Court create a new category of applying entities different from those taxatively listed by the Constitution?", the letter states.

A day ago, the majority abstained from sending Olta Xhacka's mandate to the Constitutional Court, while today it decided to turn to the Venice Commission for a more in-depth legal opinion.

Letter of Spiropalus, Venice Commission:

European Commission Democracy through Law

The Venice Commission

To the attention of the honorable:

Ms. CLAIRE BAZY MALAURIE, President

Subject: Request for an opinion

Dear Ms. Claire BAZY MALAURIE,

I take advantage of this opportunity to express my gratitude and appreciation and that of the Assembly of Albania for the precious contribution of the Venice Commission through relevant opinions on important issues for the consolidation of the rule of law and constitutional institutions in Albania.

On behalf of the Assembly of Albania, I am submitting this request for an opinion regarding the relationship between representative parliamentary democracy and the tax rulings of the Constitutional Court in the context of the role of the Assembly in examining motions for the incompatibility of the mandate of the deputy.

Cases of incompatibility in the exercise of the deputy's mandate are foreseen in points 2 and 3 of article 70 of the Constitution of Albania, which expressly states:

"1. Deputies represent the people and are not bound by any binding mandate. 2. Deputies cannot simultaneously exercise any other state duty, except that of a member of the Council of Ministers. Other cases of incompatibility are determined by law. 3. Deputies may not perform any profitable activity that originates from state or local government property, nor may they acquire their property. 4. For any violation of paragraph 3 of this article, with the motion of the Speaker of the Assembly or one tenth of its members, the Assembly decides to send the case to the Constitutional Court, which determines the incompatibility."

Only the cases provided for in point 3 of article 70 of the Constitution result in the loss of the mandate of the deputy and for which the Assembly "decides" to send the matter to the Constitutional Court for substantive review, while the other cases provided for in point 2 of this article are handled by the Assembly according to the legislation in force.

The procedure for examining requests for the incompatibility of the mandate of the deputy is provided for in point 4 of article 70 of the Constitution and in article 119/1 of the Rules of the Assembly. The Regulation of the Assembly is the act that regulates the organization and functioning of the Assembly, according to the definition in Article 75, point 2, of the Constitution.

The examination of requests for the incompatibility of the mandate of the deputy, which leads to the loss of the mandate of the deputy, is summarized as follows:

A body of the Assembly, the Council for Regulation, Mandates and Immunities, with an equal composition of MPs from the parliamentary majority and minority, first examines the requests (motion) for the incompatibility of the MP's mandate at a first glance (prima facie) if the conditions are met that are foreseen in point 3 of article 70 of the Constitution for sending the case to the Constitutional Court according to the provisions of point 4 of article 70 of the Constitution;

The plenary session of the Assembly decides to send the case to the Constitutional Court, considering the report of the Council. In cases where the Council does not reach an agreement, the positions of the parliamentary majority and minority are presented to the plenary session in separate reports;

The Constitutional Court examines the basis of the claims in the requests for the incompatibility of the mandate of the deputy.

The Constitution of Albania foresees two ways to set the Constitutional Court in motion for examining requests for the incompatibility of the mandate of the deputy:

i) through the Assembly, which is set in motion by the request/motion of the President or 1/10 of the deputies (Article 70, point 4, of the Constitution);

ii) through the grouping of 1/5 of the deputies according to article 134, point 1, letter "c", of the Constitution.

In 2016, the Constitutional Court with decision no. 7/2016, after making a final interpretation of Article 70 of the Constitution, decided that despite the constitutional provision, 1/5 of the deputies were not directly legitimized to set the Constitutional Court and the Assembly in motion in any case, he had to send the request/motion for the incompatibility of the mandate of the deputy to the Constitutional Court as soon as it was presented to him. After this decision, the Assembly sent every request/motion to the Constitutional Court.

With two decisions of 2016 (decision no. 93/2016 and decision no. 72/2016), taken after decision no. 7/2016, the Constitutional Court decided that the Assembly did not have to send every motion to the Constitutional Court, but only those that were related to the incompatibility that leads to the loss of the deputy's mandate (cases provided for in point 3 of article 70 of the Constitution - ... when the deputy himself with his actions violates the constitutional prohibition provided for in this provision, i.e. if he carries out profitable activities originating from property of the state or local government, or acquires property of these). The Assembly, according to the Constitutional Court, had to examine the other cases by itself.

In 2016, the Constitution of Albania underwent several changes, but the constitutional provisions, which provide for the right of 1/5 of the deputies to initiate the Constitutional Court in cases of incompatibility of the mandate of the deputy, were not changed (Articles 131 and 134 of the Constitution ).

Yes, in 2016, amendments were approved in the law no. 8577, dated 10.2.2000, "On the organization and functioning of the Constitutional Court", through which a new provision was added (Article 66), where expressly 1/5 of the deputies or the Assembly are defined as entities that set the Constitutional Court in motion for the incompatibility of the deputy's mandate.

In 2019, the Assembly approved changes to its Rules of Procedure, where, among other things, it added Article 119/1 to match the jurisprudence of the Constitutional Court, a provision that provides that requests for the incompatibility of the mandate of the deputy are evaluated from a legal-formal point of view at a first glance (prima facie) by the Assembly, without going into the essence if they are according to the criteria of point 3 of article 70 of the Constitution (that is, except those requests/motions related to benefits from the deputy directly against public property). This is because, according to the decisions of the Constitutional Court (decision no. 93/2016 and decision no. 72/2016), the issues related to the criteria of point 2 of article 70 do not fall under the jurisdiction of the Constitutional Court and do not need to be sent to that court for consideration.

In 2022, two motions from different groups of the parliamentary minority (motions presented by 1/10 of the deputies) were filed in the Parliament of Albania for the incompatibility of the mandate of a deputy from the ranks of the parliamentary majority for the same facts.

The Assembly examined these requests according to constitutional jurisprudence and the new legal framework after the decision of the Constitutional Court no. 7/2016, and by a majority of votes decided not to send the case to the Constitutional Court, assessing that the criteria of Article 70, point 3, of the Constitution were not met. (prima facie assessment), as it did not result that the deputy had benefited from public property or profits from public property.

The grouping of 1/5 of the MPs, which was legitimized to go directly to the Constitutional Court to request the incompatibility of the MP's mandate, submitted the relevant request to this Court. 1/5 of the deputies represented 28 deputies, 15 of whom had submitted to the Assembly one of the motions for the incompatibility of the mandate of the deputy.

The Constitutional Court considered this request of 1/5 of the deputies in the College, in the meeting of Judges and in the plenary session. It turns out that this request has been reviewed on its merits. The parties, the petitioners and the MP through their representatives/lawyers have presented the relevant claims and requests, the evidence supporting them, have answered each other's and the court's questions, the judicial debate has been exhausted based on the principle of adversarialism, the research has been presented final.

Despite the procedural exhaustion of the review on the merits, the court has not given a decision regarding the merits of the case, but has issued a decision to suspend the trial of the case on the grounds that the Constitutional Court cannot take the case into consideration to express itself on the basis of the case, as long as there is no decision of this body, the Court cannot consider such requests.

On the same day as this trial, the request of 1/10 of the MPs who had submitted another motion to the Assembly regarding the incompatibility of the mandate of the first MP, who objected to the Assembly's decision not to send the case to the Constitutional Court, was examined in the Constitutional Court. , treating it as a conflict of competence between the petitioners (1/10 of the deputies) and the Assembly.

For this issue, the Constitutional Court, legitimizing for the first time in its jurisprudence 1/10 of the deputies as a constitutional subject, decided to resolve the conflict/disagreement of competence between the Assembly of Albania and the constitutional subject in conflict, no less than 1 /10th of deputies and the annulment of the decisions of the Assembly for not sending the case to the Constitutional Court.

The Assembly was faced with the obligation to implement the decision of the Constitutional Court according to the provisions of Article 132 of the Constitution, which expressly states that the decisions of the Constitutional Court are mandatory to be implemented, despite the fact that with that decision the Constitutional Court broadly interpreted the constitutional provisions creating a new category of applicants, that of the group of 1/10 of the deputies.

The Rules of the Assembly provide for parliamentary rules and procedures for the implementation of the decisions of the Constitutional Court (Article 87). A body of the Assembly, the Legislation Council, reviewed and analyzed the above decisions of the Constitutional Court with the aim of implementing them.

Due to the need to clarify the issues with the aim of implementing these decisions, issues arising from their reasoning, the obligation to respect the consistency with the previous practice of the Constitutional Court, as well as the evolution of the constitutional and legal framework applicable to the review of incompatibility of the mandate of the deputy, the Council of Legislation carried out an exhaustive parliamentary process. The Council, among other things, during the review appointed a constitutionalist expert, who answered the questions directed by its members, representatives of the parliamentary majority and minority.

The latter, after consideration, decided that the issue should become part of the agenda of the first session. The parliamentary minority and majority, as they did not agree on a joint report, presented separate reports to the plenary session. The deputies of the parliamentary minority in the relevant report have asked the plenary session to decide to send the case to the Constitutional Court. In its report, the parliamentary majority estimated that the issue should be passed to the plenary session to decide on sending the motion to the Constitutional Court according to the provisions of Article 70 of the Constitution.

According to the parliamentary majority, while the Constitutional Court reasons that the Assembly should in any case send the motion to the Constitutional Court, point 4, article 70 of the Constitution expressly states that "the Assembly decides" to send the case to the Constitutional Court. Article 70, point 1 of the Constitution provides that the mandate of the deputy is not binding, but the deputy has an obligation to implement the Constitution and the law. The Constitution obliges the Assembly to implement the decisions of the Constitutional Court, but this does not impose on the MP the content of the vote for or against. Also, there was a need for clarification on the issue related to the way the Assembly acts when there are several decisions of the Constitutional Court that are in force (that is, each decision has the same binding value) and hold different positions on the same nature of issues, but also the decision which exceeds the competence of the procedural constitutional provision (1/5 of the deputies) by creating a new constitutional subject (1/10 of the deputies).

According to the majority, the decision of the Assembly was not only related to a deputy mandate, but to constitutional standards, the proper reading of the will of the constitution maker, balances in democracy and respect for the principle of legal certainty.

The plenary session of the Assembly decided by a majority of votes not to approve the draft decision for sending the issue of the incompatibility of the mandate of the deputy to the Constitutional Court.

This decision of the Assembly was opposed in the Constitutional Court by a group of 44 deputies of the Assembly, who requested the resolution of the conflict of powers between the Assembly of Albania and the constitutional subject in conflict, not less than 1/10 of the deputies, determining the constitutional way concretely how this conflict is resolved and how the constitutional right of the parliamentary minority (one tenth of the deputies) is exercised so that its motion is not obstructed by the Assembly.

Also, the 44 deputies requested from the Constitutional Court the final interpretation of articles 70, points 1 and 4, 73, point 1, and 132, point 1, of the Constitution of the Republic of Albania.

During the judicial review, the Assembly asked the Constitutional Court to obtain the opinion of the Venice Commission to clarify some issues that required a specialized opinion. The court did not accept this request.

At the end of the trial, initiated on the basis of the request of 44 deputies, the Constitutional Court decided to resolve the conflict/disagreement of competence between the Assembly of the Republic of Albania and the constitutional subject in conflict, not less than 1/10 of the deputies and specifically by :

annulled the decision of the Assembly "On not sending the motion to the Constitutional Court" and;

forced the Assembly of Albania to send to the Constitutional Court the motion for the incompatibility of the mandate of the deputy.

Regarding the request of 44 deputies for the final interpretation of articles 70, points 1 and 4, 73, point 1, and 132, point 1, of the Constitution, the Constitutional Court decided not to take it into account, reasoning that for the interpretation of these provisions constitutional, the Court gave an answer in the reasoning of the decision and referred to its previous jurisprudence, so it appreciated not to stop "in the analysis of the criteria and the basis of the case" (par. 66 of the Court's decision).

The Assembly again carried out, without delay, the parliamentary procedure for the implementation of the decision of the Constitutional Court in compliance with Article 132 of the Constitution. The members of the majority and the minority in the Council of Legislation appreciated to present separate reports, while all members assessed that the case should go to the nearest plenary session to decide on sending the case to the Constitutional Court.

In the plenary session of 12.9.2024, the proposal to send the case to the Constitutional Court for review did not receive the majority of votes required by law and was therefore not approved (MPs voted 9 against, 25 in favor, 65 abstained).

In summary of the above, while the Constitutional Court forces the Assembly to send the motion to the Constitutional Court, Article 70, point 4, of the Constitution expressly states that the Assembly decides to send the case to the Constitutional Court.

Article 70, point 1, of the Constitution provides that the mandate of the deputy is not binding, which implies the right of the deputy to follow his or her convictions. The Assembly, in exercising its constitutional powers and in the capacity of the body that creates constitutional norms, has the obligation to implement not only one of its decisions, but all the decisions of the Constitutional Court.

The Constitutional Court previously, unlike in the present case, when it changed its practice and made a new interpretation of the constitutional provisions, was clear by mentioning the previous decisions, analyzing the departure from the previous practice and why this happened. The fact that in this particular case he did not, those decisions are just as valid as the last one.

The non-binding mandate, Article 70/1 of the Constitution does not imply unlimited rights, because the deputy has an obligation to implement the Constitution and the law. The Constitution obliges the Assembly to implement the decisions of the Constitutional Court, but the ambiguity remains as to how the Assembly should act when there are several decisions of the Constitutional Court on matters of the same nature, which are in force (so each decision has the same binding value) and hold antagonistic attitudes or even more so when the decision forces the deputy to vote as he should. In these cases, can the MP be forced to vote in a certain way, seen from the point of view of Article 70/1 of the Constitution and Article 73/1 of the Constitution, which stipulates that the MP is not responsible for the opinions expressed and the vote in the Assembly?

The Constitution of Albania actually has a special provision that forces the Assembly (deputies) to vote in a certain way, article 77, point 2, of the Constitution (establishment of investigative commissions). In this case, the exercise of the competence of the investigation is related to the legislative and control function of the Assembly and is exercised by the parliamentary minority itself, which determines the object of the investigation. The use in the Constitution (Article 77, point 2) of the expression "is obliged", not only puts the Assembly in a somewhat special position, removing the right to evaluate the decision-making for the establishment of the investigative commission, but, at the same time, institutionalizes another type of constitutional authority, known as the power of the parliamentary minority, which we do not find in article 70, item 4.

Also, another legal uncertainty has been created as to why the group of not less than one fifth of the deputies cannot set the Constitutional Court in motion, when the constitutional and legal order in force provides for such a right.

Referring to the Constitution of Albania, article 131, point 1, letter "e", it results that "1. The Constitutional Court decides on: ... e) issues related to the eligibility and incompatibilities in the exercise of the functions ..., of deputies, ..., as well as the verification of their election;" Furthermore, the Constitution in article 134, point 1, letter "c" and point 2, provides: "1. The Constitutional Court is set in motion at the request of: ... c) not less than one fifth of the deputies; ... 2. The entities provided by subparagraphs "d", "dh", "e", "ë", "f", "g", "gj", "h" and "i" of paragraph 1 of this article may to apply only for matters related to their interests".

The Constitution provides for the possibility of verifying the compliance of the mandate of the deputy also in other provisions, except its Article 70. The provision of this competence in Article 131 cannot be considered as a repetition of the provision of Article 70 of the Constitution. The competence provided by Article 131, point 1, letter "e", of the Constitution, is independent from the provisions of Article 70 of the Constitution. For the exercise of this competence, according to Article 131, the Constitutional Court is set in motion by a group of deputies, not less than one fifth of them. As results from the overall wording of Article 134 of the Constitution, this group does not need to justify private interests, but is considered to carry a public interest.

Dear President Claire BAZY MALAURIE,

Based on the above, since a tension has been created in the functioning of representative democracy, I estimate that it is necessary to obtain an opinion from your honorable Commission, believing that your expertise would help the Assembly to respect and correctly apply the principles and constitutional standards. In this sense, we would appreciate the opinion of the Venice Commission on these questions:

Based on the principles of representative parliamentary democracy, can MPs be forced to vote in a certain way? If there are such exceptions, what are they and are they relevant to the case of motions for the compatibility of the mandate of an MP?

What is the mechanism, if any, to force MPs to vote a certain way (for, against, abstention)?

What are the standards for determining the incompatibility of the deputy's mandate by the legislative bodies of different states and what is the role of the respective legislative body in determining the incompatibility of the deputy's mandate?

On the basis of which standards should be interpreted the relationship between the representative, non-binding mandate that MPs enjoy and their role as members of the Assembly in the case of considering motions for the incompatibility of the mandate of the MP?

What is the role of the legislative body regarding the determination of the incompatibility of the mandate of the deputy in other states and is there a judicial control over their decision-making? If so, in what relation is the competence that the legislative body has in this procedure compared to the competence of the relevant court? Which of these bodies exercises essential control of the motion to establish the incompatibility of the mandate of the deputy? What is the entity that is legitimized to send the case to the designated court?

Can the Constitutional Court create a new constitutional norm, which is not related to its interpretative competence of an existing norm? Can the Constitutional Court create a new category of applying subjects different from those taxatively listed by the Constitution?

Dear Ms. Claire BAZY MALAURIE,

Given that the issues on which we seek the opinion of the Venice Commission are important for the balance in democracy and the resolution of the tension created by the situation of legal uncertainty in our country, for which the Assembly will have to take the appropriate measures as soon as possible If possible, we would highly appreciate your feedback in the shortest possible time.

Assuring you of the highest consideration for you and the Venice Commission, we await your reply.

Please find attached the relevant documentation regarding the issues for which an opinion is sought from the Venice Commission.

Sincerely,

Elisa Spiropali/ CNA