D E C I S I O N
No. 14, dated 22 May 2006

The Constitutional Court of the Republic of Albania, consisting of: Gjergji Sauli, President of the Constitutional Court Fehmi Abdiu, Kristofor Peçi, Vjollca Meçaj, Xhezair Zaganjori, Petrit Plloçi, Sokol Sadushi, Alfred Karamuço, Kujtim Puto, 

with secretary Arbenka Lalica, on 30 January 2006, examined case no. 11 in open judicial session, which pertains to

APPELLANT:           A GROUP OF DEPUTIES OF THE ASSEMBLY OF THE REPUBLIC OF ALBANIA, represented by Petro Koçi and Ylli Manjani, with authorisation.

INTERESTED SUBJECTS:

1.      THE ASSEMBLY OF THE REPUBLIC OF ALBANIA, represented by Idar Bisri and Dritan Devole, with authorisation.

2.      THE COUNCIL OF MINISTERS, represented by Hasan Metuku, with authorisation.

3.      THE HIGH COUNCIL OF JUSTICE, represented by the vice-chairman, Ilir Panda, with authorisation.

THE OBJECT:          The repeal of law no. 9448 of 5 December 2005 “On some amendments and additions to the law no. 8811 of 17 May 2001 ‘On the organisation and functioning of the High Council of Justice’ ” as incompatible with the Constitution.

LEGAL BASIS:         Articles 124/1, 131/a and 134/c of the Constitution, as well as article 49 ff. of law no. 8577 of 10 February 2000 “On the organisation and functioning of the Constitutional Court of the Republic of Albania.”

The appellants have presented these reasons for the abrogation on unconstitutional grounds of the law that is the object of examination:

- According to the Constitution, the institution of the High Council of Justice is organised and functions with a permanent character, but not with full work time membership;

- The incompatibility of the mandate of a member of the High Council of Justice with any other political, public or private activity (except teaching) conflicts with the constitutional definition of membership in the High Council of Justice by reason of being a judge;

- The new law interrupts both the mandate of the members of the High Council of Justice, as well as the exercise of the function of judge, in violation of the Constitution;

- The conflict of interests that the law under examination intends to avoid is solvable by the legislation in force;

- The new law goes outside the constitutional logic of the representation of the judiciary in the High Council of Justice and violates its principle of self-governance;

- The law was approved in violation of the requirements of article 82 of the Constitution, which defines the obligation of the Council of Ministers to express itself about the financial effects of the law;

- Article 3 point 4 of the law gives to a member of the High Council of Justice immunity from criminal prosecution, a quality that has not been provided for by the Constitution;

- Article 2 of the law that is the object of examination, as it has been formulated, prohibits the President of the Republic, the President of the High Court and the Minister of Justice from performing their other public duties in addition to membership in the High Council of Justice.

The representative of the Assembly of the Republic of Albania has set out:

- The new law aims at freeing the High Council of Justice from conflicts of interest in the function of rendering justice;

- Article 5 of the law under examination, that is, the incompatibility with certain activities, has to do with the members of the High Council of Justice, but not with the President, the President of the High Court and the Minister of Justice;

- The term “judge” in the composition of the High Council of Justice defined in article 147/1 of the Constitution does not have to do with full time activity as a judge, but with their election from the ranks of the judges;

- The activity of the judges as members of the High Council of Justice full time does not mean that they will no longer have ties with the judiciary, but they will remain part of it even after the end of their mandate as a member;

- Internal contradiction and lack of clarity of the legal provisions cannot be the object of constitutional adjudication;

- The Assembly has respected the constitutional obligations for examining the financial effects of the law.

The representative of the High Council of Justice has set out:

- The members of the High Council of Justice elected by the judiciary must be considered judges and as such they have immunity;

- The members of the High Council of Justice have not resigned from the duty of judge, but are exercising this duty in another form;

- According to Article 5 of the law under examination, the President of the Republic, the President of the High Court and the Minister of Justice cannot be denied competences in the exercise of duty of member of the High Council of Justice.

CONSTITUTIONAL COURT

after hearing the rapporteurs of the case, Alfred Karamuço and Kujtim Puto, the representatives of the appellants who sought the acceptance of the complaint, the representatives of the Assembly who sought the refusal of the complaint, the representative of the Council of Ministers and of the High Council of Justice who said that they left it to the judgment of the Constitutional Court, and after discussing the case as a whole,

FINDS:

            By law no. 9448 of 5 December 2005, the Assembly of the Republic of Albania made several amendments and additions to law no. 8811 of 17 May 2001 “On the organisation and functioning of the High Council of Justice.”  With these amendments and additions, the members of the High Council of Justice were to choose one of the functions, either to exercise the duty of judge full time or only the duty full time of member of the High Council of Justice.  As members of the High Council of Justice, they would enjoy immunity from criminal prosecution.  Except for the judges of the High Court, the other judges would have the right to return again as full-time judges after the end of their mandate as members of the High Council of Justice.  In addition, according to these amendments, the members of the High Council of Justice elected by the Assembly should not be judges.

The Constitutional Court considers that the resolution of the problems set out by appellant and by the interested subjects is conditioned by the interpretation of the constitutional norms and principles for the separation and balancing among the legislative, executive and judicial powers, the constitutional regulations on the nature and functioning of the High Council of Justice, and the status and activity of their functionaries, among other things.

The principle of the separation and balancing of the powers as one of the main foundations of many modern constitutions, provided also in article 7 of the Constitution, gives the possibility to the three branches of the government (legislative, executive and judicial) not only to respect one another in the exercise of their functions, but also to be checked and assisted in a mutual manner, with the purpose of the best possible functioning of the system of governance.  This principle, not being an end in itself, assists power in being distributed to several holders with different tasks and functions, in order to secure, reciprocally, greater justice in its exercise.  On the other hand, this principle also assists in the joint action of the holders of the powers, assuring a level of higher security and a guarantee for reaching correct and well-considered decisions. Therefore, the principle of the separation and balancing of the powers, notwithstanding the alternation of the political forces in power, should remain dominant.

The autonomy and independence of judges constitutes an effective guarantee for the rights of citizens. These guarantees find their expression in article 147 of the Constitution, from the content of which the “government” of the judiciary has been left to the competence of the High Council of Justice.  According to this provision, that constitutional organ, independent from the legislative and executive powers, decides among other things about the transfer of judges of the first instance and appeal and about their disciplinary responsibility as well as proposing judicial candidacies to the President of the Republic for appointment.  The High Council of Justice is the constitutional organ positioned at the top of the organisational pyramid of the judicial power.  In order to realise the self-governance of the judiciary, the High Council of Justice has a majority of judges, who, exercising their function as such, realise the connection of this Council with the judicial body.  The Constitution maker has instilled a corporate (self-governing) spirit in the High Council of Justice with the specific purpose of making the court independent from interferences of the legislative and executive powers.

The concept of self-governance of the judiciary finds its expression not only in the framework of the separation of powers, but also in their joint action.  Therefore, it can hardly be accepted that there is a violation of the principle of the separation and balancing of the powers when one power creates organs of another power or secures income for the budget of another power.  Starting from the need for joint action among the powers, the self-governance of the judiciary cannot be realised as required without respecting the principle of democracy, that is, without also listening to and appreciating the will of the sovereign, which is expressed not only when it approves the laws of organisation and functioning of the organs of the judiciary, but also when it approves the appointment of the members of the High Court and its President, as well as when it directly elects three members of the High Council of Justice.

The joint action of the High Council of Justice with the executive power shows itself especially in the procedures of disciplinary measures against judges. These [measures] cannot be taken without the active participation of the Minister of Justice, while the appointment [of the judges] cannot be done without the approval of the Chairman of this Council, who, because of his function, is the President of the Republic. The Constitution has given the President of the Republic the chairmanship of the High Council of Justice, because the Head of State can exercise better than anyone else the mission of moderator in the activity of the High Council of Justice, since his function has been vested with prestige and the position he occupies as an institution puts him above all the parties.

These are the fundamental elements of mutual action among the powers, without which a system of governance cannot be understood.

  Distinguishing the judges from the category of officials of the other powers is considered one of the most important aspects of the independence of the judiciary. The executive is perhaps the most serious concern for this independence, because potentially it has a direct interest in connection with the manner of solution of a large number of questions and because it has the practical possibility to exercise the greatest influence against the judges.

The independence of the judiciary has two essential components, which are: impartiality and independence of the judge (with the respective distinctions between them). Impartiality refers to a subjective position of the judge in connection with the case and with the parties participating in it, while independence means not only a specific position toward the exercise of the judicial function, but a position or relationship with respect to the others, especially the executive power, which is based on the existence of objective guarantees and conditions. The recognition of the importance of these principles, which are interwoven with one another, as well as the taking of measures to respect them directly affect the correct resolution of the questions under adjudication, and therefore the Constitution itself, in its provisions, has defined both the composition of the High Council of Justice as well as the nature of the activity of the organ as a whole and of its members in particular.

It is argued that the additions and amendments made to law no. 8811 of 17 May 2001 “On the organisation and functioning of the High Council of Justice” are necessary to avoid conflicts of interest of the members of the Council, especially during decision-making, where this influence is claimed to have been concrete, as well as during the exercise of control of the activity of several courts, which its members personally directed. Therefore, with the additions and amendments made to law no. 8811 of 17 May 2001 “On the organisation and functioning of the High Council of Justice,” the members of this organ will have to work full-time in the Council and will no longer exercise full time the duty of judging cases, therefore also that of directing the courts.

The Constitutional Court reaches the conclusion that the amendments and additions not only weaken the self-governance of the judiciary, but also, in themselves, they conflict with the regulation that the Constitution has made for the composition and functioning of the High Council of Justice.

Article 1 (unchanged) of law no. 8811 of 17 May 2001 “On the organisation and functioning of the High Council of Justice,” elaborating the constitutional principle of self-governance of the judiciary, has defined the High Council of Justice as the “responsible state authority” both for appointing judges, for disciplining them and for controlling their activity.  The fulfilment of the purposes of the Constitution and the law also require, to the maximum extent possible, the avoidance of interests in the decision-making of this organ as well as the strengthening of control over the activity of the judges.  Nevertheless, the solutions that the law under examination has given, even if were to be accepted that they are advantageous, are not in harmony with the constitutional regulation and with the relationships of the organs defined by it.  In the regulations that the Constitution has made of the relationship between independence and the guaranty of the judge (self-governance of the judiciary) on the one hand, and conflicts of interests of the members in the decision-making of the High Council of Justice on the other hand, it has been intended for priority to be given to the independence of the judicial power and not to conflicts of interest, as has been done by the law under examination.

The joint interest of protection is the foundation of every rational motive of independence and [the foundation] of the guarantee and, in the service of protection of the judiciary, the Constitution has not removed the members of the High Council of Justice from adjudicating nor, consequently, from the interests of the judicial body.  Therefore, problems that might emerge in the decision-making of the High Council of Justice from a conflict of interests of its members may and should be resolved either in the framework of the existing legislation or by making various additions to the laws, but without violating the constitutional regulations about the nature of the functioning and composition of the High Council of Justice.

The law that is the object of examination mixes up the institution of the High Council of Justice, which, according to the Constitution, is permanent in its function, with membership that does not operate in a continuous manner and full time.  Article 147/1 of the Constitution, regulating the functioning and composition of the High Council of Justice, clearly defines that this Council consists (in its majority) of judges who are elected by the National Judicial Conference. For the latter, it specifies not only the number, but also their quality as judges, which is how it also acts when it defines participation because of function (‘ex officio’) of the President of the Republic, the President of the High Court and the Minister of Justice, who are not and cannot be permanent.  If it were the case that the majority of the members of the High Council of Justice might not be judges, the Constitution would simply have appointed members as in the case of the members elected by the Assembly.  It was done in this way in article 15 of the prior law no. 7561 of 29 April 1992 “On some amendments and supplements to law no. 7491 of 29 April 1991 ‘On the major constitutional provisions,’ ” which provided that the High Council of Justice consisted among others of nine jurists, that is, without specifying them as judges or prosecutors.  So long as the Constitution in force has made the specification itself, calling them judges, other names cannot be set that might add or reduce other qualifications and lead to a different composition from the composition that it defines.

The law that is being examined has sanctioned that nine members of the High Council of Justice are elected by the National Judicial Conference (article 1) and, after election, exercise duty as such full time (article 3/1).  This legal regulation conflicts with the content of article 147 of the Constitution and with its spirit, according to which nine members of the High Council of Justice elected by the National Judicial Conference are not only formally, but also actually, judges in office (in action).  In this connection, Albanian practice, also supported by the content of several other constitutional norms, has considered judges as state functionaries charged with the duty of rendering justice.

According to article 143 of the Constitution, “Being a judge is not compatible with any other state, political or private activity.”  From the content of this norm, it is clear that the first and main duty is being a judge, in the sense that judges give decisions and render justice in a continuing manner. In connection with this duty, the Constitution has made an exception concerning their non-permanent activity in the High Council of Justice, in which they represent the body of the judges who elected them to this constitutional organ.

Exceptions to the constitutional regulation cannot be set by law.  The Constitution maker itself, when considering it reasonable, has made exceptions in a special manner.  Thus, it has expressly permitted the membership of the President of the Republic or the Minister of Justice in the High Council of Justice, although articles 89 and 103/2 of the Constitution have determined respectively that he (the President of the Republic) “may not hold any other public duty” or that “the Minister of Justice may not exercise any other state activity.”

According to the Constitution and the repealed norms of law no. 8811 of 17 May 2001 “On the organisation and functioning of the High Council of Justice,” the nine judge members are elected by the National Judicial Conference because of their quality as judges.  Conceiving of them as judges in office, the Constitution maker has not seen it appropriate to clothe the members of the High Council of Justice with any kind of special protection, nor has it put limitations on them so far as concerns incompatibilities of function. The lawmaker itself, in the law under examination amending the prior one, has accepted that the members of the High Council of Justice should enjoy immunity and that their mandate is incompatible with any other public or private political activity except for teaching.  It is not accidental or a consequence of “forgetfulness” that the Constitution does not mention “privileges” or “limitations” as above for the members of the High Council of Justice, who are elected by the judiciary and represent its “voice” at a time when it is accepted that they constitute an essential guarantee for the independence and autonomy of the judiciary.  Not giving these guarantees is reasoned with the very conceptualisation of the Constitution maker that the nine members elected by the judiciary, being in the composition of the High Council of Justice, continue to work full time as judges and as such, according to article 137 of the Constitution, enjoy immunity like all other judges.

It is baseless for the interested subjects to claim that the members of the High Council of Justice elected by the judiciary may be considered judges even though they do not in effect work as such, as has also been done for those judges who work in various management functions in the Ministry of Justice.  Law no. 8678 of 2 November 2000 “On the organisation and functioning of the Ministry of Justice” gives judges and prosecutors the possibility, in article 4, to serve in several structures of the Ministry of Justice, and this period is recognised to them only as work seniority as a judge or prosecutor for purposes of the requirements of the professional career.  However, without analysing the constitutionality of this norm, which is outside the object of examination of the case, the acceptance of such a claim would conflict with the interpretation and implementation of article 143 of the Constitution, according to which being a judge is not compatible with any other state activity.

Although the Constitution treats the regulations about incompatibility of the mandate of the functionaries of the constitutional organs as well as the immunity of the latter in an exhaustive manner, the law under examination has made a regulation for them that even the Constitution itself has not provided.  Here it is not only a matter of having failed to exclude the incompatibility of the mandate of a member of the High Council of Justice with the mandate of members who have this duty because of their function (the President of the Republic, the President of the High Court and the Minister of Justice), but also because the new law considers the mandate incompatible with any other public activity (thus also with activity as a judge), when article 147/1 of the Constitution not only does not prohibit it, and on the contrary stresses that the members elected by the National Judicial Conference are judges.  Furthermore, the law under examination has gone beyond the regulation of article 5 of the repealed law. The latter, accepting the incompatibility of the function of a member of the High Council of Justice only with that of prosecutor, member of the management and executive organs of political parties, or advocate in the courts of the first and second instance, accepted the incompatibility to the extent that it did not violate not only the principle of the separation of powers, but also the principle of balancing them as well as that of self-governance of the judicial power.

By article 6/4 of the law under examination, the members of the High Council of Justice have been given the right to enjoy immunity, also defining both the procedure and the respective organ charged with lifting this immunity (the High Council of Justice).

Immunity has to do with the protection of a particular category of officials (that is, immunity ratione personae) from the jurisdiction of the criminal courts.  Its constituent elements are the lack of responsibility for criminal offences as well as freedom from criminal prosecution.  The Constitution has expressly provided the functions whose bearers should enjoy immunity. It has not been provided in any provision of the Constitution that the members of the High Council of Justice shall have immunity, while it has clothed judges with immunity because of the particular importance of the duty that they perform and not as members of the High Council of Justice. As is also said in Decision no. 212 of the Constitutional Court of 29 October 2002, while the Constitution has treated the organisation and functioning of these institutions and the status of their members, it has also at the same time defined the limits of their rights.[1] This line of reasoning has also been provided for judges as well as several other functionaries of the constitutional organs.

The Constitution has not assessed membership in the High Council of Justice to be a less important duty, while considering it as a function that cannot have the same legal or political risk as a member who works full time as a judge. Therefore, it cannot be accepted that it is compatible with the spirit and content of the Constitution to give immunity to the members of the High Council of Justice. This position constitutes one more argument supporting the thesis that when the Constitution maker created the High Council of Justice, it did not have the purpose of charging it with exercising full time functions, but only part time ones, as it has in fact been organised and has functioned from the time of its creation as an organ.

Article 6 of the law under examination amending the prior law obligates the members of the High Council of Justice to confirm their election to exercise one of the duties, that is, either that of judge on duty or that of member of the High Council of Justice.  The immediate and forced interruption, before the term, of the mandate of a member or the function of a judge violates the Constitution, which in article 147/1 has defined that the members of the High Council of Justice stay in office for five years.  According to this amendment made in the law under examination, the members of the High Council of Justice, upon being elected as such, can no longer exercise the function of judge.  Consequently, the constitutional and legal provisions for a disciplinary proceeding of the judges, as a guarantee of their independence and impartiality, will not be applied for them.  Not only that, but the new provision of the law interrupts the constitutional function of the judge, because by putting him before the obligation to choose one of two alternatives – member of the High Council of Justice or full-time judge – it limits his time of staying in office, something that conflicts with the Constitution, which provides that the time a judge stays in office cannot be limited.

The above provisions have given the members elected by the National Judicial Conference the right, at the end of their mandate as members of the High Council of Justice, to return to the court where they previously performed their duty as a judge (or with their consent to another court of the same level).  A member of the High Council of Justice who in his previous duty enjoyed the mandate of a member of the High Court has been excluded from this rule.  The latter cannot return to the prior duty, but will be entitled to “the same treatment as any member of the High Court whose time period for staying in office ends.”

The obligation of a member of the High Court to choose one of the duties, that is, either judge on duty or full time member of the High Council of Justice, as well as excluding him from the right to return as a member of the High Court, conflicts with the content of several constitutional provisions.

In the first instance, the President of the Republic, who appoints the members of the High Court, and the Assembly, which gives consent to this appointment, having in mind the moral and professional qualities of the judge, charge him with adjudicating cases and give him a nine year mandate. Not only by separating him from adjudicating, but also by not guaranteeing that he can return as a judge after the end of the mandate on the High Council of Justice, the law under examination resolves these questions in violation of that constitutional will.  In the instant case, two constitutional mandates compete with one another: that of judge of the High Court and that of member of the High Council of Justice.  The question of which of these mandates should prevail should find a solution starting with the organs from which these functionaries received their mandate.

The selection of this mandate cannot be done by the judge himself, since he has received the mandate of a member of the High Court not from the National Judicial Conference, as the members of the High Council of Justice receive it, but from the President of the Republic and from the Assembly, that is, the organ elected directly by the people.  It cannot be accepted that the Constitution will tolerate it that after the representative organ of the people gives a mandate to perform the duty of judge, the National Judicial Conference will give another mandate that separates him from this duty in order to perform that of full time member of the High Council of Justice or which removes him finally from adjudicating in the High Court.  Not only that, but not permitting the member of the High Court to return to the latter after finishing the mandate in the High Council of Justice, under conditions when his mandate as a judge has not ended, violates article 138 of the Constitution, which expressly provides that the time judges stay in office cannot be limited.  The purpose of this provision is, in the first instance, not to permit the Assembly or the Government to set by law time periods for judges to stay in office, because such a limitation contains elements violating the independence of the judicial system.

Other problems emerge in relation to article 134 of the Constitution concerning the removal from duty of a member of the High Court, which [article] has exhaustively provided the cases of the end of this mandate.  The law under examination has added the case of the end of the mandate when a judge of the High Court is elected a member of the High Council of Justice (or when he leaves the High Council of Justice), something that also conflicts with analogous final interpretations made by the Constitutional Court,[2] according to which it is not possible to make additions by law on issues that the Constitution treats in an exhaustive manner.

The law under examination has created conditions affecting the constitutional formula of the composition of the High Council of Justice with judges of all levels.  It sets the pay of a member of the High Council of Justice at an amount 10% less than that of the deputy chairman of that organ, when the pay of a member of the High Court is equal to the salary of the latter.  Starting with this violation and from the limitations of the mandate of the judge of the High Court from nine years to the five years of a member of the High Council of Justice, as well as the guarantees of the work place that a member of the High Council of Justice has in comparison to his duty as judge, it can be concluded that the law under examination indirectly impedes the participation in the High Council of Justice of the judges of the High Court, under conditions when participation from the three levels is essential, just as is the composition of the High Council of Justice by a majority of judges.

The absence of harmonisation of the provisions of a law with those of other laws might not in itself create unconstitutionality, but when the lack of clarity creates such problems that lead to an incorrect implementation of the legal provisions and to a violation of the principle of the state of law and legal certainty, then it cannot be accepted that these norms are not also incompatible with the spirit of the Constitution.  In the case under examination, the amendments that were made also conflict with the unamended provisions of article 7, point 1/c, according to which the mandate of a member of the High Council of Justice ends when he is no longer a judge or when a disciplinary measure has been taken against him, as well as article 7, point 3 of law no. 8811 of 17 May 2001 “On the organisation and functioning of the High Council of Justice,” according to which the premature end of a mandate in the High Council of Justice is declared by decision of the High Council of Justice and is not done by the compelled declaration of the member himself.

Contrary to the claims of appellants, the Constitutional Court does not find elements that are incompatible with the Constitution in the content of article 1 of the law under examination, which has made an addition to point 2 of article 4 of the prior law* and has specified that the members of the High Council of Justice elected by the Assembly should not be judges.  Such a definition is compatible, on the one hand, with the principle of the balancing of the powers, which requires control and joint action among them, as well as with the formula of article 147 of the Constitution, on the other hand, according to which not only the judiciary will be represented in the High Council of Justice, with ten members, but also the legislative power with three members.  The latter bring the spirit of the legislative organ to the High Council of Justice and, as such, should not be replaced with judges.

  Appellants also claim that the law under examination was approved in violation of the requirements of the provisions of article 82/3 of the Constitution, because the Council of Ministers did not give an expression about the financial effects of the law.

From the materials of the case, it turns out that by document no. 2838 of 15 November 2005, the Council of Ministers, in response to a request of the Assembly, notified the latter that the draft law does not have a direct influence in reducing the income of the State Budget for 2005 and that it is in agreement for its examination in the Assembly according to the respective legal procedure.

Regardless of the legal form of the expression of the opinion of the Council of Ministers (opinion or decision of the Council of Ministers), article 82/3 of the Constitution opens the way to approval of a non-governmental draft law even when the Council of Ministers has not given its opinion within a 30 day time period.  Therefore, the claim cannot be accepted that the law is unconstitutional because there was no express opinion of the Government for the financial support of the respective draft law.

FOR THESE REASONS:

The Constitutional Court of the Republic of Albania, in reliance on articles 49 ff. and 72 of law no. 8577 dated 10 February 2000 “On the organisation and functioning of the Constitutional Court of the Republic of Albania,” by majority vote

D E C I D E D:

            - The repeal as incompatible with the Constitution of the Republic of Albania of articles 2, 3, 4, 5 and 6 of law no. 9448 of 5 December 2005 “On some amendments and additions to law no. 8811 of 17 May 2001 ‘On the organisation and functioning of the High Council of Justice.’ ”

- Refusal of the request to repeal article 1 of the law.

- This decision is conclusive, final and obligatory for execution.

MINORITY OPINION

               I do not agree with the decision of the majority.  Although it might not practically be the best solution for the functioning of the High Council of Justice, Law no. 9448 of 5 December 2005 “On some amendments and additions to law no. 8811 of 17 May 2001 ‘On the organisation and functioning of the High Council of Justice,’ ” does not conflict with the spirit and content of the Constitution.

            I will divide the arguments supporting this opinion into two groups:

            First, the law does not violate the constitutional principles on which the judicial power was constructed and on which it functions.

            Second, the law in general does not violate the regulations defined in the Constitution either.

            1.  Referring to the complaint, as well as the decision of the majority, we see that the amendments that the above-mentioned law brings are judged to be a direct violation of the independence of the judicial power and the non-removability of the judges.  The new legal regulation according to which the members of the High Council of Justice pass to full time work in this organ is considered as a violation of the constitutional formula for the functioning of this organ, because, according to appellants, judges will now not take part in the High Council of Justice, but “former judges,” and consequently, the “self-government” is violated.

            On the other hand, the majority considers putting the judges before the alternative of working either as such or as members of the High Council of Justice full-time a violation of the principle of the non-removability of the judge, because according to it, this movement is an imposed one.

            The minority has the categorical opinion that this law does not violate the constitutional principles that guarantee the organisation and activity of the judicial power, such as the principle of independence and that of non-removability.  If we refer to genuine constitutional practice and theory, it emerges that the concept of the independence of the judiciary can be individualised in two levels:  “So-called external independence, which has to do with the guarantees that aim at preserving the body of magistrates from the interferences that might come from the political and social environment, other public powers, the parties to an adjudication, interest groups, but also the communications media.  On the other hand, so-called internal independence has to do with the interactions that are conducted within the judicial body and consists of guarantees that aim at protecting the judge from intra-organisational pressures.”[3]

            One of the means by which the independence of the judicial power is realised, according to our Constitution, is the High Council of Justice, which as an independent institution, with the composition and competences that it has, “self governs” the judiciary.

            In the first instance, the amendments to the law do not affect the constitutional formula by which “self-governance” is guaranteed.  Referring to the view of appellants and of the majority, the question arises spontaneously: to what power does the group of nine judges belong who pass to full time work?  The answer of the minority is categorical: they have been and remain representatives of the judicial power.  With the amendments to the law, they have a position “sui generis,” their functions as judges “freeze,” but it can never be accepted that they leave [the judiciary].  This is so evident that in the reference of the law, their return to the function of judge after the end of the mandate in the High Council of Justice is not connected to any condition provided by the legal provisions for the ex novo recruitment of the judges.  Thus, the members of the High Council of Justice return to full time work as judges at the end of their mandate and that [sic] the time of work in the High Council of Justice is recognised as seniority for purposes of their career in the judiciary.  Furthermore, as was also emphasised by the deputy chairman of the High Council of Justice: the judge members of the High Council of Justice should continue to remain members of the National Judicial Conference even during the time that they work full time in the former organ.

            In attempting to avoid “conflicts of interest,” the amendments to the law fully serve the preservation of the “internal independence of the judiciary,” as mentioned above, from intra-organisational pressures.  According to the opinion of the minority, a judiciary that while having an internal hierarchy does not have existing dependencies and interests is more protected in its internal independence.  That is, the relations between the chairman of a court and the judges is a problem more of an administrative and procedural nature, but they turn into fundamental dependencies when over the relations, being chairman is “overlaid” with being a member of the High Council of Justice.  The relations between the judges themselves also change, to the detriment of internal independence, when one of them is also at the same time a member of the High Council of Justice.  The intra-organisational pressures are avoided significantly in those cases if we refer to the law as amended.  With the repeal of the amendment by the majority, the conflict of interests and the “intra-organisational” pressures again remain existent in the High Council of Justice and in the judiciary in general.

            Exactly these potential dangers (confirmed often in practice) would be avoided in a visible way by the amended law.  In this connection, the organisation and functioning of the High Council of the Italian Magistracy, where the members work full time, could be taken as a very beneficial example.  The comparison that is made with the High Council of the Magistracy is based on the fact that the Constitution of our country is similar to the Italian Constitution.

            Concerning article 7, letter “c,” on the end of the mandate of a member of the High Council of Justice, the majority and the appellants consider that the changes to the existing law lack consistency.  According to that provision, being a member of the High Council of Justice (for the members elected by the National Judicial Conference) is tied to being a judge, which would mean that the mandate ends when the person is no longer a judge.

            From a comparison of the provisions, it does not turn out that there is a clash or “confusion,” as the appellants try to characterise it.  On the contrary, the provisions are in harmony and, with a simple interpretation of the law, one reaches the conclusion that with the amendments to the law, the mandate of a member of the High Council of Justice does not end, because he continues to be a judge with a temporary “sui generis” position.

            2.  But are there provisions that conflict with the Constitution?

a) In article 4 of the law there is a clarification about the members of the High Council of Justice who are elected by the Assembly of the Republic of Albania.  Based on the Constitution, the law had as a criterion, before its clarification, that they be jurists with no less than 15 years experience in the profession.  In my opinion, the legislator has acted correctly by completing the law to specify that these jurists should not be judges.  The completion that the appellants present as a violation of the Constitution is an expression of the interpretation of the spirit of the Constitution not to permit an eventual violation of the constitutional formula, which has accepted that there be nine judges in the High Council of Justice and not 12, as might have happened before the amendment to the law, when the Assembly might also have chosen three members from the ranks of the judges.

            b)  In the law before amendment, incompatibility was connected to the functions of member of the High Council of Justice.  In the amendments to the law, the term “function” was replaced by the term “mandate.”

            Appellants present this amendment as absurd and unconstitutional, because according to them under the amendments the performance of the function of the President of the Republic, the Minister of Justice and the President of the High Court is considered incompatible with the function of member of the High Council of Justice.

            The reasoning connected with the constitutionality of this amendment is entirely groundless, because the above three subjects are ex officio members of the High Council of Justice.  They do not receive or leave a mandate and that [sic] their function is not limited in time with that of members of the High Council of Justice.  Consequently, it was the formulation before the amendment that was against the Constitution, tying incompatibility with function and, consequently, directly violating the constitutional and legal position of the above subjects. The amendment made from “function” to “mandate” avoids this unconstitutionality, because the clear distinction could normally be made as to which members of the High Council of Justice earn or receive a mandate and which ones have membership in this organ in their function.

            The minority is of the opinion that the problem of immunity could have been discussed only for the three members elected by the Assembly.  In addition, the status of a member of the High Council of Justice who comes from the High Court also remains a problem.  Nevertheless, there was no reason for these defects, which could normally be repaired by legislation, to serve as one of the reasons for the unconstitutionality and repeal of the law as an entirety.

Member: Alfred Karamuço

MINORITY OPINION

               I am against the resolution of the case by the majority concerning the amendments to the law on the High Council of Justice.

            1.  It is now a consolidated practice of European democracies that have inserted in their legal order (in some cases also in the Constitution) an organ like the High Council of justice, which constitutes an effective guarantee for respecting democratic principles, including the autonomy and independence of the judiciary and the protection of the fundamental rights and freedoms.  Such an organ has as its principal duty the exercise of the attributes of the administration of the judicial power, which previously were in the competence of the executive.

            According to Article 147 of the Constitution, the High Council of Justice is a constitutional organ with a specified numerical composition, as well as with the manner of election of its members.  Thus, three members are ex officio, nine are elected by the National Judicial Conference and three by the Assembly.  This composition, sanctioned in the prior law, is also kept by law no. 9448 of 5 December 2005, which has been objected to in the Constitutional Court.

            Such a solution has been adopted by many states in order to balance the exercise of the powers according to the principle of “checks and balances,” but giving numerical priority to the members coming from the judiciary.

            With the new law, it has been specified because of the avoidance of conflicts of interest that the members of the High Council of Justice work full time, while the composition remains the same in the proportions that the Constitution has defined.  The designation of full time is the discretion of the lawmaker; it is a judgment that is made in a particular situation and for a purpose that the state intends to achieve.  This solution is also recognised in other states and in this, there is nothing in the regulation that is in violation of the Constitution.

            2.  Another problem is whether the members elected from the ranks of the judges will remain such and if not, does this regulation conflict with article 147 of the Constitution?  Of course, according to the law, judges elected to the High Council of Justice do not exercise their function as full time judges any more for so long as they are members of the High Council of Justice.  The law does not permit this, which for this reason has avoided conflicts of interest.  The solution that the law has made does not violate the Constitution, however, as long as the manner of election and the number designated by it has been preserved.  The Constitution has put as a criterion the election of members by judges of all levels, and therefore mentions the term ‘judge.”  But, this not does not mean that they will remain such while they exercise the duty of the member of the High Council of Justice.  To accept the contrary is nonsense and practically impossible to realise, because they cannot work full time in two places of work at the same time.  The meaning of the constitutional norm is that 2/3 of the members shall come from the judiciary but not remain judges, as the members elected by the Assembly cannot remain in their posts.

            The term “judge” used in the Constitution does not have the meaning that they will continue to be full time judges even after they are elected members of the High Council of Justice.  The purpose of the constitutional norm is that the election of nine members of the High Council of Justice shall be done from the circle of judges of all levels, that is, not just to belong to the judiciary in general but to be from those who take part directly in the rendering of justice. Their participation in the High Council of Justice as full time members, not exercising the duty of judge in effect for so long as they are members of the High Council of Justice, does not violate the constitutional principle of election from the judiciary, because they are elected precisely from that power and they represent it.  Furthermore, on the basis of the law, they return to exercise again the function of judge upon the end of the mandate as members of the High Council of Justice or if they resign from that post.

            Nonetheless, it is up to the desire of the judge to choose one or another post.  He is free to remain a judge, or, when he considers it more appropriate to be a member of the High Council of Justice, he may choose the latter.

            So far as concerns the members of the High Court, as to whom the law does not say that they return to duty at the end of the mandate as member of the High Council of Justice, the latter does not make the law unconstitutional.  Even in this case, the election will be made by the member of the High Court himself.  The comparative example using the nine-year time period of the mandate of a member of the High Court and the five year term of a member of the High Council of Justice is abusive, because in fact the election of members of the High Council of Justice from this instance of the judiciary is not hindered either.  It might be accepted that a judge of the High Court who is at the beginning of his mandate will not resign from duty to become a member of the High Council of Justice, but this cannot be said for another who is at the end of the mandate as a judge.*  However, the selection is at the will of the judge, and therefore this legal regulation is not incompatible with the Constitution.

            3.  So far as concerns the immunity of the members of the High Council of Justice, I am of the opinion that the recognition of such a right is not contrary to the Constitution.   On the contrary, if the law had not recognised this right, which the members elected from the judiciary have earned by their post and similarly the ex officio members, this would have been considered an inappropriate protection of the members and a violation of the authority of the High Council of Justice as a constitutional organ.

            In connection with this, the sub-commission for constitutional reform of the Venice Commission has recommended: “Taking account of the typical situation in Albania, it would be appropriate for the law to give the members of the High Council of Justice immunity from criminal prosecution because of acts performed during the exercise of their functions.”[4]

            4.  I am of the opinion that it would have been inappropriate for a law to be considered incompatible with the Constitution that treats the organisation of the High Council of Justice the same as in Italy, France, Germany, Spain, Portugal etc., with the strict composition according to the Constitution ex officio, 2/3 from the judiciary and 1/3 from the Assembly.  A regulation for full time work in the High Council of Justice does not violate any of the constitutional principles, to the contrary, in the spirit of the Constitution, it avoids conflicts of interest.

            Referring to the Italian practice and legislation, we see that the members elected by the magistracy are removed from their functions, while the members ex officio stay in office.

            Law no. 9448 of 5 December 2005 “On some amendments to the law on the High Council of Justice” has also adopted the same criteria.  Putting these positions up against one another, and also taking account of the solution given by the majority, it would have been inappropriate to have thought that the Italian state has had for a long time (and continues to maintain) such a situation of unconstitutionality.

Member: K. Peçi

MINORITY OPINION

               I cannot be at all in agreement with the majority.  I think that not only article 1, but all the provisions of law no. 9448 of 5 December 2005 “On some amendments and additions to law no. 8811 of 17 May 2001 ‘On the organisation and functioning of the High Council of Justice’ ” in their entirety are not in violation of the Constitution, and therefore the complaint directed to the Constitutional Court by a group of deputies should have been refused as groundless.

            In the democratic state as a form of government, the Constitution is a “directional” order and not an order that controls every law in detail.  The Constitution defines the general principles of the construction, organisation and functioning of the democratic state.  It is not a regulatory mechanism for everything.  In general, its declarations are fragmentary, in a manner so as to create the appropriate space for interpretation and implementation in practice.  Only such a Constitution can have a long life.  In the exercise of his functions, the lawmaker has a broad space for judgment, but always rigorously respecting the fundamental principles declared in the Constitution.

            The successful implementation of the fundamental constitutional principles, especially those having to do with good governance, the state of law and respect for the fundamental human rights and freedoms, requires a serious engagement, co-ordinated and in good faith, of all the state mechanisms, especially those mechanisms that are connected in a direct manner with the three main powers.  In this sense, every constitutional institution or mechanism should be restrained in the exercise of its competences within the constitutional space, without violating the legitimate competences and constitutional functions of the other institutions, and all the more of Parliament as the legislative organ and the bearer of the sovereignty of the people. The separation of powers and parliamentary sovereignty are central elements in the parliamentary regime of governance.

            It is in this framework that the relationships that the Constitution creates between the legislative process and constitutional justice should be seen and evaluated, and in this case also between the Assembly itself and the Constitutional Court as the central institutions that exercise the above competences.  Of course the place they occupy in the democratic state, the organisation and competences of each of them are quite different, but on the other hand it is more than necessary that they co-ordinate and complete one another in the service of respecting the fundamental constitutional principles in the best way possible.  And nevertheless, in this co-operation, the Assembly is the main partner.  In the exercise of its principal function as the lawmaker, as a rule it is also at the same time the first interpreter of a constitutional norm.

            The space for interference or for this interpretation in the service of the approval of new legislation depends above all on the nature of the constitutional norm that is being interpreted, the nature and the space that the constitutional declaration itself creates in the material meaning.  If it has a general and fragmentary nature, the possibility exists for quite a broad interpretation of it, but always respecting the central values of the constitutional declaration and its harmonisation with other constitutional concepts.  Within this space, the majority in the Assembly in particular is free to orient itself also by politics, which more concretely means in its political programmes and priorities on the basis of which it was voted for in the last parliamentary elections.  It is its primary obligation to implement this political programme in its entirety, and effectively, during its whole mandate.

            This interpretation or this interference should be understood as a legitimate attempt to reach specific political objectives, which normally are not given directly in the constitutional norms.  On the other hand, also within this space, the Legislator has the duty of interpreting and implementing those constitutional norms on a continuing basis in conformity with the priorities, interests or problems that the time imposes.  Therefore, through its activity the Lawmaker may also develop further the content of particular constitutional provisions, but without affecting their essence or other fundamental principles.  Thus, the Assembly does not present itself only as a constitutional organ, but also as a joint formulator of constitutional law, as the principal guarantor for respecting the concept of the constitutional state.

            In contrast to the above, the Constitutional Court is more restricted in this connection, both materially as well as in its competence.  It guarantees respect for the Constitution and makes a final interpretation of it, having it as a central objective to check the compliance of the laws approved by the Lawmaker with the constitutional norms and principles.  In this framework, in the complex process of legitimating contemporary political systems, the Constitutional Court plays a very important role in checking that the fundamental human rights and freedoms declared in the Constitution are respected, as well as other constitutional principles or values, such as the separation of powers, the independence of the judicial power, legal certainty, etc.  In this sense it performs an extremely important task, that of checking the very legislative process itself, and in this case also of one of the central functions of Parliament

            The noted American philosopher Cahn emphasised that “…every democratic state has the solemn obligation of making it possible for judges to keep the power of Parliament under control.”[5]  But this complicated and delicate process should assure to the maximum rationality, transparency and good understanding.  It should not be forgotten that the Constitutional Court is a negative lawmaker.  It cannot replace the Assembly.  Its examination is focussed only on assessing the constitutionality of a law.  For this purpose it tries also to uncover its essence, but without claiming to make a detailed correction or clarification of the law.  The intervention of the Constitutional Court is done in conformity with the competences recognised to it by the Constitution.  It cannot stand as an authoritative organ before the Lawmaker, making an exhaustive or hypothetical interpretation of the Constitution and not leaving other alternatives of interpretation and implementation when such a thing is not found by the provision itself that is being interpreted.  The Constitutional Court makes a final interpretation of the Constitution, but without making constitutional amendments.  Alexander Hamilton emphasised that the right of checking does not put the judiciary over the Legislative, but on the contrary, both are put to the duty of being subject to the constitutional authority. 

            These constitutional standards are not taken account of in the majority decision. The law in question might have inaccuracies or problems.  It might not be the best solution for the instant case.  This also varies much depending on the view that each might have of the law.  But nevertheless, what is most important to emphasise is that all its provisions not only do not conflict with the fundamental constitutional principles, but on the contrary they are in the service of their real interpretation and affirmation in Albanian reality.  On the other hand, I think that in its decision the majority often enters into unimportant details, and the arguments that it uses are not in the service of the fundamental constitutional principles.  It does not succeed in analysing and putting in a correct relationship the core of the law or its main purpose and the means that the lawmaker uses to reach this purpose.

            The central argument of the majority is that the law in question conflicts with article 147/1 of the Constitution, the interpretation of which, according to the majority, leads to the conclusion that the draftsmen of the Constitution had it in mind to create the High Council of Justice as a permanent organ, but with a part time membership.  According to it, this conclusion is also supported by article 143 of the Constitution, in which it is stressed that “Being a judge is not compatible with any other state, political or private activity.”  On this basis, the conclusion is reached in the majority opinion that the solution produced by the new law is in violation of the constitutional regulations and seriously violates the independence of the judicial power.

            In fact, the majority of democratic countries operate today with mechanisms similar to the High Council of Justice dealt with also in article 147 of our Constitution.  In general, in its composition special attention is devoted to the best possible representation of the judicial power (as a rule, more than half are judges), in the function of the central idea of the need of this power for self-governance, but without denying representation in this constitutional institution also to representatives of the two other powers, because it is rightfully emphasised that the problems of justice are not only problems of the judicial power.  They interest the whole state and democratic society in its entirety.  However, special care is devoted to keeping this constitutional organ from the pressure or interference of these two powers during decision-making.

            In the final analysis, this mechanism should guarantee the real independence of the judicial power in all its components, which means the individual independence of the judges, their collective independence as well as the deliberative independence of the judges.  However, the main thing is that in its decision making on a concrete question, the judge should always be free to be subjected to and to decide only on the basis of the Constitution and the laws.

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