At the end of the mandate as a judge?/ Zaçaj: I will turn to the Venice Commission

2024-12-10 14:18:00, Aktualitet CNA

At the end of the mandate as a judge?/ Zaçaj: I will turn to the Venice

Holta Zaçaj has reacted to the fact that her mandate as a judge in the Constitutional Court has ended or not.

She stated that she has made the decision to turn to the Venice Commission for an 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 .

The reaction of Holta Zacaj

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 the 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 regulations relevant legal 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)./ CNA