From: Vincent W.J. van Gerven Oei
A Hitchhiker’s Guide to the Albanian Constitution (and Its Crisis)

In the last few days, has received several responses to its critical commentary on the legal opinions of the US and EU missions in Tirana, and the attempts of their respective ambassadors, Donald Lu and Romana Vlahutin, to justify what is potentially a blatant violation of the Albanian Constitution – the highest legal document of the Albanian nation state.

Although most of these responses have been positive, showing perhaps a shift in public opinion regarding the outsized roles that foreign diplomats continue to play in Albanian politics and the cautious emergence of a critical attitude that has long been mainstream in Kosovo, some of the responses were more suspicious of the veracity of our claims.

Many of these more ambiguous responses came from foreigners living in Albania, without sufficient command over the Albanian language to understand the recent legal debates surrounding the appointment of the Temporary  Prosecutor General, and the role of the foreign missions in the Albanian legislative process. Others may feel that our criticism of foreign diplomats doesn’t match their personal experiences with them or their perception of them. But it is important here to separate the personal from the political!

One of the main barriers to their understanding of what is going on was the absence of an English translation of the Albanian Constitution. That is why we downloaded this ungooglable file from the website of EURALIUS, the legal assistance mission of the EU in Tirana, and transformed it into a human-readable PDF and Word document.

Below we will feature a selection of the articles pertinent to the current constitutional crisis, which everyone may check at her or his own leisure.

The Constitution and the Constitutional Court

Art. 4(2) The Constitution is the highest law in the Republic of Albania.

This seems pretty obvious: all other Albanian legislation should be in harmony with the Constitution, and if not, the Constitution prevails. It is the task of the Constitutional Court to adjudicate any such issues:

Art. 124(1)  The Constitutional Court settles constitutional disputes and makes the final interpretation of the Constitution.

Art. 131(1)(a) The Constitutional Court decides on compatibility of the law with the Constitution or with international agreements as provided for in Article 122.

This also means that the government can never rely solely on the opinion of any international legal assistance mission. Irrespective of the opinion of OPDAT and EURALIUS, in the case of unclarity regarding the constitutionality of certain decisions, such as the election of a Temporary General Prosecutor with a simple plurality vote, the Constitutional Court should be consulted about the (apparent) contradiction between the Constitution and the law (in this particular case Law no. 97/2016).

It is unclear why the opposition did not seek the opinion of the Constitutional Court, because Art. 134(1)(c) allows 1/5 of Parliament members to have recourse to the Constitutional Court.

So let’s now consider the replacement of the Prosecutor General, which has led to the current constitutional crisis. Part Ten of the Constitution deals with Office of the Prosecutor.

The Prosecutor General

The first issue we encounter is whether the mandate of former Prosecutor General Adriatik Llalla was indeed officially over. Art. 148/c(1)(b) states that “The mandate of the Prosecutor General shall end when the 7 year mandate expires.” This was not the case, because at Llalla was elected for a 5-year mandate—the justice reform extended it to 7 years. It is fair to argue that Llalla’s term is indeed a 5 year term, although one could reasonably hold the view that he should serve a 7 years term.

It’s exactly such situations that the Constitution has foreseen, when it has stated that the termination of the mandate should be declared by a decision of the High Prosecutorial Council:

Art. 148/c(2) The termination of the mandate of the Prosecutor General is declared by decision of the High Prosecutorial Council.

This means that although Llalla’s mandate had ended, it could not be terminated because the High Prosecutorial Council has not yet been installed. In other words, he entered a legal vacuum to which only the Constitutional Court, not Parliament and certainly not international missions, could put an end to.

The second issue is that the Constitution states clearly that a 3/5 majority is necessary for the election of a new Prosecutor General:

Art. 148/a(1) The Prosecutor General is appointed by three-fifths of the members of Assembly among three candidates proposed by the High Prosecutorial Council, for a seven- year mandate, without the right to re-appointment.

This article echoes an earlier article in the Constitution:

Art. 6/1 The election or appointment to or assumption of a public function with one of the bodies foreseen in this Constitution or established by law, regardless of the regulation contained in other provisions of this Constitution, shall be prohibited, as long as circumstances are established impairing the integrity of the public functionary, under the conditions and rules provided for by law being approved by three-fifths of the entire members of the Assembly.

This article states that not only should a General Prosecutor, as a pubic function mentioned in the Constitution, be elected by 3/5 of all 140 deputies, but it also that such an election is prohibited “as long as circumstances are established impairing the integrity of the public functionary.” One would say that the fact that the Temporary Prosecutor General Arta Marku was the protégé of Legal Affairs Commission chair Ulsi Manja would be enough to impair her integrity.

Furthermore, the Constitution demands that a new General Prosecutor, as any other prosecutor, is vetted before being installed:

Art. 148/ç(1) Prosecutor can be Albanian citizens appointed by the High Prosecutorial Council after being graduated from the School of Magistrates and after the conduction of a preliminary process of verification of their assets and their background checks, in accordance with the law.

None of the nominees, including Marku, was vetted by any of the vetting institutions. In other words, by electing Marku as Temporary Prosecutor General, Parliament potentially violated at least three articles from the Constitution.

The Legal Opinion of OPDAT and EURALIUS

So what is the government’s argument? Well, they never formulated one, but let us look at the November 22 legal opinion drafted by OPDAT and EURALIUS, on which the government appears to rely. The “international” opinion relies mainly on Law no. 97/2016 “On organization and functioning of the prosecution in the Republic of Albania.”

However, as we found out above, the Constitution is the highest law in Albania, which means that if Law no. 97/2016 claims something about the Prosecutor General that is contradicted by the Constitution, the Constitution prevails.

Art. 109(2) of Law no. 97/2016 states the following:

In the event the mandate of the Prosecutor General ends prematurely, before the establishment of the High Prosecutorial Council, the functions of the Prosecutor General shall be temporarily assigned, by a decision of the Assembly, to be performed by one of the most experienced prosecutors from the ranks of the prosecutors who meets the requirements and criteria of Chapter IV, Section I of this law.

Note first of all that this article talks about a premature end of the Prosecutor General’s mandate, meaning that it covers the situation in which Llalla’s mandate would end before April 2017, when the High Prosecutorial Council should have been installed according to the Constitution (Art. 179(5)) and nominate the candidates for his successor.

In the present case, Llalla’s mandate didn’t end prematurely, but rather following the 5-year term stipulated in the Constitution, at the time of his election. Hence, it is already questionable whether this article can actually be applied.

However, OPDAT and EURALIUS chose to interpret the article differently:

This provision intends to provide the rules in case where the mandate of the Prosecutor General ends at a time where the High Prosecutorial Council is not yet established.

This is a very broad interpretation of “prematurely,” because according to the Constitution, the only possible scenario in which Llalla’s term could have ended before the High Prosecutorial Council was established would have been before April 2017. Any later date is already in violation of the Constitution, which as explained above set April 2017 as the latest date for establishing the HPC.

This is also the basis for the opposition’s argument that the government unconstitutionally dragged on the establishment of the High Prosecutorial Council such that Llalla’s mandate would end before it was established such that it could nominate its own candidate with a simple majority. This, however, is difficult to verify and irrelevant to the rest of our argument.

The solution of the internationals to this problem was to claim that the Temporary Prosecutor General was not a Prosecutor General at all, and therefore not subject to any of the dispositions of the Constitution, including the 3/5 majority vote:

The fact that the PO Law [no. 97/2016] foresees specific rules for the temporary acting Prosecutor General, who has a limited period of mandate and is not to be considered the Prosecutor General, but just a senior prosecutor who in the transitory period is assigned the functions of a Prosecutor General, suggest that this figure is rather comparable with the figure of a deputy Prosecutor General, which is not regulated in the Constitution.

This line of reasoning is thus based on the broad understanding of “prematurely” in Art. 109(2) of Law no. 97/2016 covering the period in which the government violates the Constitution by not establishing the High Prosecutorial Council.

It further assumes that the mandate of the Temporary Prosecutor General is “limited” because it is “transitory.” This is circular reasoning. Whereas the Constitution delimits the mandate of the Prosecutor General to 7 years, the mandate of the Temporary Prosecutor General according to Law no. 97/2016 is unlimited.

And finally, it compares the Temporary Prosecutor General to a deputy Prosecutor General, therefore avoiding the Constitution. However, the crucial difference is that a deputy Prosecutor General in the end is always responsible to his boss, the Prosecutor General; the Temporary Prosecutor General is assigned all “functions of the Prosecutor General,” without anyone higher up in the hierarchy, and is therefore much more like a Prosecutor General than a deputy Prosecutor General. If it looks like a duck and quacks like a duck, it is a duck!

So this question is at the core of the current Constitutional crisis: should the Temporary Prosecutor General be considered equivalent to a Prosecutor General or not. If yes, the Constitution applies; if no, it doesn’t.

This is a question only the Constitutional Court can adjudicate, and the legal opinion of OPDAT and EURALIUS was not only premature, but also sets a dangerous precedent. For what does it mean that the highest law might be overruled by a government, waving a letter signed by a Jon Smibert, “Resident Legal Advisor” of OPDAT?