REPUBLIC OF ALBANIA
THE PRESIDENT
No .______ Prot. Tirana, on 07.02.2022
ANSWERS
ON THE QUESTIONS RAISED IN THE COURT SESSION ON FEBRUARY 3, 2022
Addressed to: THE CONSTITUTIONAL COURT OF THE REPUBLIC OF ALBANIA
Your Honors,
In the court session of February 3, 2022, the Constitutional Court addressed some questions to the President of the Republic, regarding the case under review, setting the continuation of the session on February 7, 2022, at 10:00.
After reviewing the content of all the questions, it turned out that some of the questions apparently contain elements of prejudice on the case and may be influenced by a propaganda perception.
Furthermore, for many of the questions raised by the Court in the public session on February 3, 2022, the President of the Republic has expressed his position and has submitted his requests exhaustively, and very clearly, since July 2021, through Act no. 2143 prot., dated 1.7.2021, requesting at the same time the reviewing of the case as soon as possible, which should have coincided with the termination of the mandate of the IX Legislature of the Albanian Assembly.
If the Court had examined in depth this position of the President of the Republic, or the evidence that accompanies it, many of the questions today would not exist.
However, out of respect to full transparency, as well as in response to the request of the panel of judges, we present the following answers, bearing in mind the fact that many of the questions are repetitive of one another, as well as the fact that the Court did not forward to us the clarified transcript of the questions (except for the Rapporteur's questions), while their content has been clarified by the representatives of the President of the Republic in handwriting at the session of February 3, 2022.
ON THE QUESTIONS BY THE RAPPORTEUR JUDGE, MR. PËRPARIM KALO
1. The court has forwarded to you, in addition to the decision of the Assembly and the relevant evidence: your statements on TV channels, press conferences, meetings, publications on Facebook, official website, etc. Do you have any reservations in advance about their authenticity?
Answer: Evidence obtained through an irregular legal process, contrary to the Constitution, the law and the rules defined for this purpose, as we have submitted in advance, are unusable and invalid.
All the evidence that the Assembly claims to have deposited to the Constitutional Court has been taken through an unconstitutional process, contrary to the principles and provisions of law no. 8891/2002, and Rules of Procedure of the Assembly. Consequently, the product that has come based on them, is invalid and ineffectual.
As required in our submissions, the Constitutional Court has a duty to repeal all the decisions of the Assembly of Albania.
2. You claim that the mandate of the previous legislature has terminated and the following positions submitted by the Speaker of the current legislature have not been formally confirmed by the Assembly (parliamentary majority). Give us clearer explanations for this argument, within the principle of institutional continuity?
Answer: The current X legislature of the Assembly cannot represent the will for the request made to the Constitutional Court by the previous Legislature (IXs), whose term ended on 9 September 2021.
The Speaker of the Albanian Parliament, who has simply only administration functions on the administrative activity of the Assembly of Albania, who represents the X Legislature in relation with third parties, has no rights to replace, represent, or confirm the will of the body of MPs that took the decision no. 55/2021, in the IX Legislature.
This body is completely different from the current composition of the X Legislature, when only 40 current MPs were MPs in the previous legislature when it was voted to impeach the President.
The Speaker of the Assembly has no right to replace or take decisions that the Assembly of Albania only takes in the plenary session with the direct voting of its MPs!
According to the principle of continuity between the two legislatures, the Albanian Assembly itself, according to Article 87/1, of the Rules of Procedure of the Assembly, with the termination/closure of the legislature of works of the Assembly, the draft-acts submitted for review and approval, part of the work program of the Assembly, which for various reasons failed to be approved in plenary session, are returned to the initiator. Even when the initiator is still an MP, he must re-submit the initiative, and the Plenary Session must vote on its inclusion in the work program of the Assembly.
In this case, we are dealing with a decision that has no regulatory/normative nature, which could qualify to the principle of continuity. Instead, decision no. 55/2021, of the Assembly, according to the Constitution and law no. 8577/2000, is the request that sets in motion the Constitutional Court, which should have thoroughly reviewed this issue within 3 months and to the maximum by September 9, 2021.
Only in this way could the Court have obtained the will of the IX Legislature, if it stood or not to the requests presented, regardless of whether this request was formalized through an act called “decision”.
Other reasons are set out in the position filed at the Constitutional Court as of July 1, 2021, in the requests of the President of the Republic filed in October-November 2021, as well as in the preliminary request filed in the session of February 1, 2022.
3. Another claim is that according to Article 27, paragraph 5, of the Rules of Procedure of the Assembly, the determination of the agenda of the parliamentary session cannot be made later than 48 hours before the scheduled session. Also, the establishment of the Commission of Inquiry was not included in the agenda set by the Speaker of the Assembly, which means that Article 31 of the Rules of Procedure, which stipulates the procedure to be followed for changing the agenda of the plenary session, has been violated. For this claim you rely on the fact that in the relevant dossier that includes discussions and decision-making of the Assembly of the session of May 7 such a request was not considered? Make clearer explanations for this claim.
Answer: The Assembly has the obligation to inform the general public. Hence, all acts on its parliamentary activity should be published on the official website of this institution.
On this page, for each plenary session, is published not only every act deposited, but also the internal acts, starting from the order of the Speaker of the Assembly to determine the agenda of plenary sessions, the agenda itself, the content of draft acts and the activity of respective commissions.
As we have set out in the positions and claims of the President of the Republic, deposited through letter no. 2143 prot., dated 1 July 2021, (pages 106 - 111)[1], from parliamentary practice published online, is published also Order no. 19, dated 6.5.2021, of the Speaker of the Assembly, regarding the plenary session of 7 May 2021.
Regarding this process, two other violations are observed, because on the agenda of the plenary session was not included the draft decision for the establishment of the Commission of Inquiry, and on the other hand the agenda for the convening of the Plenary Session was not published 2-days before the date set for the session, as requires the Rules of Procedure of the Assembly. In appendix 1, (point 10), and in the documentation we have filed at the Constitutional Court on July 1, 2021, Order no. 19, dated 6.5.2021 of the Speaker of the Assembly, with no. 1110 prot., dated 6.5.2021 “On the gathering of Assembly in plenary session, dated 07.05.2021, time 10.00”, as well as the attached agenda of Public Plenary Session for the acts that are reviewed by the Assembly in this session, taken from the website of the Assembly, at the link:
The Albanian Parliament, until today, has not opposed this claim of the President of Republic, in relation to this violation. In addition, the very clear evidence for this violation, are filed as of July 1, 2021.
However, after the Assembly was acquainted on 3.02.2022 with the questions that the Constitutional Court addressed the President, immediately and surprisingly, unsolicited by neither any of the parties, nor by the Court itself in the session, it activated itself and with the letter no. 1368/15 prot., dated 4.2.2022 (one day after the public court hearing) filed at the Constitutional Court additional evidence including a certified copy of:
- Order of the Speaker of the Assembly no.19, dated 05.05.2021, with no. 1110 prot., dated 06.5.2021, as well as attached to it the Plenary Session Agenda of May 7, 2021.
The Constitutional Court must take seriously the authenticity of this evidence, and compare the two documents, i.e. what was published on the official website in May 2021, not simply in electronic PDF format, but scanned in its regularly signed and stamped form by the Speaker of the Assembly, with what is filed today as written evidence. Comparing these two versions, it clearly results that there have been some interventions, raising strong doubts about manipulation of this document, in order to dismiss the substantiated claims of the President of the Republic for procedural violations committed by the Albanian Assembly throughout the process undertaken for impeachment of the President of the Republic.
We are deeply shocked how it can happen that the body of the Albanian Assembly, or its administration, in pursuit of a purely political purpose, defend in front of the court the violations it has flagrantly committed, and manages to manipulate the content of its own acts.
Specifically, the differences that are very clear and obvious:
1) There are noticeable changes in the date of order no. 19, of the Speaker of the Assembly. In the practice published online in May 2021, order no. 19 of the Speaker of the Assembly, bears the date 06.05.2021, while in the unsolicited practice deposited by the Assembly on 4.2.2022, Order no. 19, of the Speaker bears two dates: bears the date 05.05.2021, next to the enumeration of the Order, and bears the date 6.05.2021, at its head. Thus, it is easily evidenced:
- an intervention in the date of the order, in relation to the act published online;
- a different date within the same act, in the version forwarded as a certified copy at the Constitutional Court.
2) There are obvious changes regarding paragraph 20, of Order no. 19, of the Speaker of the Assembly in which is determined what will be considered on May 7, 2021, regarding the issue of impeachment of the President, changing the content of the agenda.
Specifically, in Order no. 19, dated 06.05.2021, published on the website of the Assembly of Albania, paragraph 20 has the following content:
- Draft Decision “On the approval of the report and proposal of the Committee on Legal Affairs, Public Administration and Human Rights for the setting up of an investigative commission, based on the request of a group of MPs for the impeachment of the President of the Republic”.
While, in Order no. 19, dated 05.05.2021 (?!), presented as additional evidence by the Assembly with letter no. 1368/15 prot., Dated 04.02.2022, forwarded to the President by the Constitutional Court, point 20 of this order has the following content:
- Draft Decision “On the report and the proposal of the Committee on Legal Affairs, Public Administration and Human Rights for setting up or not setting up an investigative commission, for the impeachment of the President of the Republic”.
So as it is clearly distinguishable, in this additional order that the Assembly sent to the Court Constitutional in written form on 4.2.2022, without being asked, the word "approval" was removed, the wording "of the report" has been replaced with the word "on the report", the word "and proposal" has been changed to the word " the proposal", the conjunction "of", has been replaced with the conjunction "of the", after the word "setting", the words "or not raising" have been added, and the phrase "based on the request of a group of MPs”, has been deleted altogether.
Whereas, if we compare the content of Order no. 19, dated 05.05.2021, that the Assembly, presented as additional evidence to the Constitutional Court, on 04.02.2022, it turns out that the content of the order, as noted above, does not even match the agenda of the parliamentary session that accompanies it in the written form to the practice filed with the Court.
This is because in the Agenda, even the printed version of the Order forwarded by the Assembly, quotes that: “In support of Order no. 19, dated 06.05.2021 of the Speaker of the Assembly, Gramoz Ruçi, the agenda is as follows:
“20. Draft decision “On approving the report and proposal of the committee on Legal Affairs, Public Administration and Human Rights for the establishment of an investigative committee, based on the request of a group of MPs for the impeachment of the President of the Republic".
Thus, even within the same written practice that the Assembly presented to the court on 04.2.2022, as additional evidence, it forgot to match the accompanying practice, which reveals interventions made in the act, when:
- even the date of the order that refers to the attached agenda does not match the date that the order keeps in the written copy brought by the Assembly (the agenda does not refer to date 5, but date 6 May 2021);
- as well as the content of article 20 of the order does not match with article 20 of the agenda of parliamentary session, in the written document that accompanies it.
This is the most serious action of the Assembly, which, desperate and found in illegality, tries to manipulate the evidence that has been made public for 8 months.
Furthermore, the Constitutional Court should be reminded that the Committee on Legal Affairs convened and approved the Report that it forwarded to the Plenary Session, on May 6, 2021. Therefore, there is no way that the Speaker of the Assembly, with an order drafted on May 5, could set the agenda, and know how the Committee on Legal Affairs would proceed. This fact is a clear indication that the exact version of the Order of the Speaker of the Assembly, is dated May 6, 2021 and is the one published on the official website of the Assembly, with the signature and the seal.
While the copy forwarded to the Constitutional Court by the Assembly on 4.02.2022, is clearly manipulated, to cover the procedural violations committed by the Assembly by not respecting the 2-day deadline for making public the Agenda and normally the documents that will to be considered in the Plenary Session.
The Speaker of the Assembly, not only did not have the opportunity to know the decision-making of the Committee on Legal Affairs, and consequently that on May 5, 2021, he managed to determine the agenda, but also the eventuality of a coordinated determination due to the situation politically dictated, the order takes legal effect on the date that is recorded, which is May 6, 2021, a date that has not respected the 2-day deadline dictated by the Rules of Procedure of the Assembly.
4. In your opinion, the approval of the Report of the Committee on Legal Affairs in the plenary session of May 7 has violated paragraph 3 of article 112 of the Rules of Procedure of the Assembly. Give your explanations for this claim.
Answer: According to paragraph 3, article 112, of the Rules of Procedure of the Assembly, the Plenary Session should not have approved any report submitted by a committee that had not fulfilled the obligation to hear the President of the Republic.
While the Assembly, for other reasons that we have put forward (page 113 onwards of the Positions of the President dated 1.7.2021), knew very well that its mandate and legitimacy were ending to set up and carry out investigative activities.
This is the basic reason for which the plenary session should have decided the rejection/disapproval of the Report.
5. You have refused to attend the investigative hearing, claiming that you have had formally scheduled meetings with senior representatives of other countries. Did it happen in your practice to change appointments when circumstances required? Was this the reason for your non-appearance at the hearings held by the commission of inquiry and the Assembly?
Answer: The question is not correct. The President, in the first place, has never refused the meeting, and has even asked to be heard by the Committee on Legal Affairs, which does not hold an investigative session, as you refer to in your question.
Please refer to the letters dated 5 and 6 May 2021, of the Institution of the President, where he expressed his readiness to meet, discuss and be heard in the Committee on Legal Affairs on 10 May 2021, requesting the appointment and meeting time.
For more, refer to the letters of the President of the Republic no. 1520/2 Prot., Dated 5.5.2021 and no. 1533/2 prot., Dated 06.05.2021, and the positions submitted by the President of the Republic on July 1, 2021 (page 88 onwards).
The Committee on Legal Affairs, serving to the political order, communicated in an ultimate way with the President of the Republic, asking him to appear in less than 20 hours on such a big and important issue.
6. Another alleged reason for the refusal of your appearance at the hearings is the lack of legitimacy of the relevant structures of the Assembly. Where is the lack of recognition of the legitimacy of the investigative commission, as a body of legislative power established by law?
Answer: The lack of legitimacy of the investigative structures set up in the Assembly has been flagrant and has been extensively documented with written evidence, and is found in full in the positions of the President of the Republic filed since July 1, 2021, in addition to other submissions, that are also treated more deeply on page 110 and onward.
7. Give extended arguments for the claim that the activity of the commission of inquiry should be carried out before the end of the term of the Assembly, otherwise the commission loses its legitimacy.
Answer: The arguments on this issue are based on documents and treated extensively with written evidence, and explained fully on the position of the President of the Republic filed from July 1, 2021, on page 88, to page 130, of the document.
8. Why do you think that the establishment of the commission of inquiry is not in line with the function and goals of parliamentary control provided in Article 77 of the Constitution?
Answer: The commission of inquiry functions by violating the Rules of Procedure of the Assembly at every point, which violates the procedures for the sake of political order, and violates the Constitution, which in Article 77, paragraph 3, clearly states that: “3. The commissions of inquiry act according to the procedure provided by law ", there is no longer any discussion that this commission was set up and functioned in an unconstitutional way.
For more, please refer to the position of the President of the Republic filed since July 1, 2021, on page 118, and thereafter.
The commission of inquiry should not have been set up at all, as there was no violation of the Constitution, but simply only propaganda claims of the majority in the Assembly.
9. How has the Assembly intervened through the committee in the powers of the President?
Answer: Please refer to the position of the President of the Republic filed since July 1, 2021, on pages 130-140, as well as to the answer given to the first question of the Chair of the Court, Mrs. Tusha.
10. How do you support the claim that the commission could not have been set up because it lacked the objectivity?
Answer: The Commission had no matter to investigate, but only had political objectives and goals, to put pressure and blackmail, as well as to impose its will on the activity of the President of the Republic.
Thus, the Commission itself, and all its activity were set up and developed on a flagrant violation of terms as established for the full independence and the functioning of institutions in the Albanian state.
11. How did the commission of inquiry violate the principles of democracy, the constitutional principles of separation and balance of powers, due process, impartiality?
Answer: It is evident and completely proven that in all procedural stages of the efforts to set up the Commission of Inquiry, the violations have been extremely serious and irreparable. This is widely addressed in the position of the President of the Republic filed since July 1, 2021.
The refusal to hear the President of the Republic has violated the fundamental right of any process of investigation, evaluation, trial, where the parties have the indisputable right to be heard and confronted.
The violation of the procedure serving to the political objective, clearly evidenced by proof and facts, has produced a dangerous process and a punishable precedent, against which a firm position must be taken by the Constitutional Court in order to set a standard of the inviolable procedural law, as the only guarantee of respect for all freedoms and rights of the citizens of Albania from the ordinary citizen to the President of the Republic.
The procedure can never be violated only to serve politics! This makes the essential difference between the rule of law and the rule of party-state.
12. Did you have legal means available to oppose the establishment and functioning of the commission of inquiry and did you consider using them? After the reactivation of the Constitutional Court and the beginning of its activity, did you consider using the constitutional appeal as a legal means in the sense of Article 131 of the Constitution?
Answer: All available legal means have been used. The position and claims of the President of the Republic, submitted on July 1, 2021, set out the object of the request, the clear constitutional and legal basis for each request, regarding the issue on which the Assembly unconstitutionally and unfairly invested the Constitutional Court.
This legal basis clearly includes Article 131 of the Constitution, which also highlights the obligations of the Constitutional Court to rule on everything that has been raised in this case.
The President could not respond or react differently outside the nature of this case initiated by the Assembly and formalized only by decision no. 55/2021, which is considered the request of the Assembly for the Constitutional Court.
The President could have invested the Constitutional Court with his request, only after the Assembly has made a final decision, and not in the intermediate stages, when it was not yet known that political madness would lead to the adoption of decision no. 55/2021.
13. You claim that a conflict of competence has arisen between you and the Assembly. Is this a new claim and can it be raised in this kind of judicial reviewing? The Assembly pretends that you have used the "counterclaim" as a procedural tool, while it is not recognized in this type of trial. Do you have any comments on this?
Answer: The entire decision-making of the Assembly, including the flagrant procedural violations, have been guided simply and exclusively by unconstitutional political objectives, with the sole purpose of maximally limiting the exercise of the role of the President in order to paralyze his activity. Therefore, politics has imposed violations of the Constitution and the law, creating a very serious inter-institutional situation.
Thus, in addition to what was clarified in the previous question, we reiterate once again that the President has used all available procedural legal means.
The President could not respond or react differently outside the nature of this issue initiated by the Assembly and formalized only with the final decision no. 55/2021, which is considered the request of the Assembly for the Constitutional Court.
The ascertainment and evidencing of this dispute was done in the final period of the activity of the Commission of Inquiry and which was formalized with the report of this commission on 9.6.2021.
14. Does the right to be heard mean physical presence at the hearing or can it be considered exercised by submitting written submissions? We have in mind that in the communications with the Assembly you have submitted that you have given exhaustive arguments with your letter no. 1651, dated 16.05.2021. Is this confirmation related to your right to be heard?
Answer: The right to be heard is an inalienable constitutional right!
This fundamental right is clearly sanctioned not only in the Constitution, but also in the Rules of Procedure of the Assembly and the law on investigative committees.
The rejection by the Committee on Legal Affairs of the Albanian Assembly, which is the procedural moment when this right is fulfilled, is an indisputable proof that the political objective and political goals were willing to violate the Constitution and the law in order to achieve their goals.
In the letter you refer to, no. prot. 1651, dated 16.05.2021, the President of the Republic addressed the Speaker of the Assembly, drawing his attention and asking him to protect the institution of the Assembly of Albania, so that he would not fall prey to political goals by seriously violating the Constitution and the law.
He also drew attention to the fact that the Albanian Parliament should not be used as a means of consumption to serve the politics and propaganda of the day, in the tense situation after the elections of April 25, 2021, but to fulfill its activity only by respecting to the letter of the Constitution, the Rules of Procedure of the Assembly and the law on commissions of inquiry.
The President also demanded that this observance of the Constitution and the law, was an absolute necessity to avoid serious institutional conflict, which produced only costs for the citizens, the country, and its institutions.
Thus the messages of the President in this letter are clear, principled and in full compliance with his role as guarantor of the Constitution and the unitary functioning of the state in harmony and mutual respect of the institutions part of it.
It is very clear and unequivocal that after the refusal by the Committee on Legal Affairs of the Assembly to hear the President of the Republic on May 10, 2021, everything, every further procedural step and every decision-making, was clearly unconstitutional and illegal, and cannot replace or compensate for a fundamental violation not only of the freedoms of the individual, but also of respect for the public authority that the President represents and exercises, but also of the rules and procedures adopted by the Assembly itself.
Therefore, the rejection of this right by the Assembly and the message of the President of the Republic dated May 16, 2021, are two completely separate issues that neither compensate nor replace each other.
Any attempt to compensate, or minimize a flagrant, fundamental violation, is simply and only a service in terms of the unconstitutionality of all actions, steps and procedures followed on this issue.
15. Do you think that if you had appeared at the hearing and presented arguments contrary to the arguments of the Commission of Inquiry, the Assembly would have taken a different decision?
Answer: The decision-making of the Assembly was politically prepared, pre-determined, and politically dictated.
The proof for this is the rejection of the request and the right of the President of the Republic to be heard in the Committee on Legal Affairs.
Therefore, the majority of the Party-State in the revenge to usurp the institution of the Head of State, rejected the request of the President to be heard, as it was very clear that this would publicly crush the whole prepared farce.
For more, please refer to the material deposited since July 1, 2021.
16. How do you assess the fact that the commission of inquiry chose the last date from the proposed dates (May 19-24)?
Answer: All dates, May 19, 24, or any other, are dates of an unconstitutional activity. Thus, as such, without any value.
The entire activity and the entire period within which the Commission of Inquiry has acted is null and void, from the moment when the Committee on Legal Affairs, in violation of the Rules of Procedure of the Assembly, refused to hear the President of the Republic on May 10, 2021.
For more, please refer to the material of the President of the Republic filed since July 1, 2021.
17. Do you think that your non-appearance to be heard before the committee and the plenary session may have influenced the conclusion of the Assembly that you have committed serious violations?
Answer: The Commission of Inquiry and the Plenary Session in its function, constitute two serious unconstitutional and illegal moments. This is because, since the public act of refusing to hear the President of the Republic from the Committee on Legal Affairs, it is clear to every lawyer that this whole political and unconstitutional process was illegal and pre-determined.
For more, please refer to the material of the President of the Republic filed since July 1, 2021.
18. In your objections you refer to the violation of Article 27, paragraph 5 of the Rules of Procedure of the Assembly regarding the setting of the agenda. Do you continue to stick to this reference?
Answer: We definitely continue to stand by this claim!
The answer to this question is completely explained in the answer to question no. 3, of the Judge Rapporteur, Mr. Përparim Kalo.
19. You allege that the Assembly, although aware of the deadline of 1 July, did not submit any material, claim or position until 9 September (2021), the date of the termination of its term. You also claim that the Constitutional Court failed to review within that date the issue that Legislature IX had invested with its decision no. 55/2021. In your opinion, the Assembly has also violated the deadline set by the Court, November 5, for presenting additional arguments. For this reason, you claim that the Constitutional Court would show bias if it accepts the continuation of the trial. Can you articulate these claims more clearly?
Answer: Regarding this question, everything we have presented is facts and not claims.
It is a fact that the IX Legislature of the Assembly of Albania, after being acquainted with the position of the President of the Republic of July 1, 2021, has NOT submitted any objectionable material until September 9, 2021, the date when the constitutional mandate ended.
It is also a fact that the Assembly (X Legislature) has violated the deadline set by the Constitutional Court, dated 5 November 2021, to present additional arguments.
It is also a fact that the Constitutional Court failed to review the case within 9 September 2021, violating article 47, paragraph 1, of law no. 8577/2000.
20. Did you implement the constitutional obligation to be a super partes during the 2021 general election campaign?
Answer: The entire activity of the President of the Republic has been a clear and public proof of the position above the parties.
The President of the Republic, not only publicly, but also with all legal instruments, has strongly raised awareness of the state institutions and political forces for the development of a free, fair, equal and pressure-free electoral process.
He has never supported any political entity running in the elections and has been very critical, both of the ruling Party and the Opposition, or of any attitude that contradicted respect for the principles of democracy and a fair and democratic electoral process.
Everyone remembers the constant and public criticism of the President of the Republic, including against the extremely wrong actions of the opposition leadership for the practice of boycott in general, the boycott of the Justice Reform in particular, and especially the historical responsibility for burning the mandates of MPs, or for not participating in the local elections of June 30, and not registering in particular for the elections of October 13 by the Democratic Party.
Likewise, the President's encouragement to reach the June 5 agreement and his encouragement to sign and respect this agreement at all costs, has been publicly evidenced.
Even the public warning of the President of the Republic, that if the opposition did not sign the June 5 agreement, the elections would take place without it.
The elections of April 25, 2021, and the developments that preceded them, clearly proved the very right concerns and positions of the President of the Republic, which are also confirmed in the final OSCE/ODHIR Report.
The President's commitment to protecting the integrity of the electoral process and preventing serious events due to the impact of the vote, are clearly evidenced.
All written facts and documents proving this fourfold have been made available to them together with the material dated 1 July 2021, as well as in the court session of 3.2.2022.
We remind the Constitutional Court that there has been no concern from the Central Election Commission, as the institution that according to the Electoral Code of the Republic of Albania, is the administrator and the sole implementer of electoral processes in Albania.
This role of "super partes" quoted according to your question, is confirmed by the Central Election Commission itself, which through letter no. 4378/1 prot., Dated 24.04.2021, has guaranteed that 19 members of the staff of the Cabinet of the President of the Republic, will be recognized the right to receive information on the progress of the electoral process directly at the polling stations and counting stations of votes, according to the request of the President of the Republic no. 1479 prot., Dated 24.4.2021.
Attached is the copy of letter no. 4378/1 prot., Dated 24.04.2021, of the Central Election Commission.
21. How do you assess the formula of the oath and do you think that you have respected the obligations it contains, especially regarding the guarantee of neutral and moderate status among the political forces?
Answer: The President of the Republic has consistently had a very clear position confirmed and proven in writing for a moderating, peaceful, and constructive status, between the political forces, without overestimating or underestimating any political entity and having as his motto equality before the law, and respect for the principles of democracy and the highest moral and social values.
The President of the Republic has taken several initiatives addressed to both parties to cooperate in the implementation of Justice Reform, in compliance with the Constitution.
The President of the Republic has publicly undertaken several platform initiatives to promote the process of cooperation in the framework of the European integration process.
The President of the Republic has taken formal initiatives to avoid a clash over the situation of the June 30 elections and to set an inclusive date in order to guarantee social peace in the country and to guarantee the fundamental right to vote. These are public facts, with which the court has been acquainted by other processes.
Even during the dire situation of the pandemic, the President undertook comprehensive initiatives in the function of peace, tranquility and preservation of the health of citizens, holding several meetings of the Security Council with the participation of the opposition outside parliament, to avoid the use of the pandemic for political purposes by any party.
During the pandemic period, on April 8, after consultations with the chairman of the Democratic Party, Mr. Basha, the President presented a platform[2] for European integration to the Prime Minister, through the Ambassador of the United States of America in Tirana, which aimed to ensure comprehensive cooperation on key issues related to Albania's obligations for the opening of the negotiations with the EU.
In response to the commitment of the President of the Republic to foster this cooperation, the government undertook the brutal act of destroying the National Theater in the middle of the night on May 17, 2020, during the pandemic period, and when the conditions of the declared state of emergency were enforced.
To avoid not only the destruction of the National Theater as an asset of extraordinary value, but also the consequences of a conflict between the violent police intervention against artists and civil society, the President took the initiative to appear before the Constitutional Court himself, in order to curb the onset of those consequences which became a fact committed on 17 May 2020, and which is known to all public opinion, domestic and international actors, as well as members of the trial panel.
The President's initiatives have been innumerable to curb conflicts, to respect the principles of the rule of law by each party, not to jeopardize the stability of the country and its democratic credentials, and not to freeze the process of opening of negotiations of Albania with the European Union.
The President has maintained this stance even when confronted with pressure from the ruling party and its alliance with the state through their attacks.
However, as a reminder: On March 10, 2021, when the Socialist Party held a public political activity, where it presented its candidates for the April 25 elections, the Prime Minister / Chairman of the Socialist Party, Edi Rama, in the public presentation of the candidates for MPs, Etilda Gjonaj, Minister of Justice, compared her as a candidate to the President of the Republic, giving the President the quality of a MP or candidate for election.
Putting both photos of Mrs. Gjonaj and President Meta on the screen, Edi Rama commented that:
"Here is him with whom justice wins? Do not tell me that this is not an MP![3] He is the chief MP of that team[4] .... And today while we speak this is the accuser and this is the accused by this one. Imagine now, as if on April 25, she is not elected, but he is elected.[5]”
Another scandalous evidence of the majority attack on the President of the Republic, is proved in these photos that show propaganda posters placed in public places by the Socialist Party in the cities of Gjirokastra, Durres and Tirana, in violation of Article 79 of the Electoral Code.
The public installation of these propaganda materials is a clear indication of the direct attack on the President by the government and the political influence of the government on the structures of the State Police, Local Police Directorates of these cities, as well as on the municipalities of Gjirokastra, Tirana, Durres, etc. which, although responsible for the conduct and implementation of some important tasks related to electoral process, did not take appropriate measures to fulfill them, according to the law, and have demonstrated a clear bias in favor of the government.
Even for this fact, the President of the Republic, on April 19, 2021, made his denunciation to the law enforcement bodies, to investigate the perpetrators of the production and appearance of this propaganda material with offensive content and outside the criteria and requirements of the Electoral Code, as well as to other persons who have supported installation of this material and its advertising, as well as to all those public officials who through inaction have abused the duty assigned to them by law.
For more, please refer to pages 66, 70, and 97-103 of the positions of the President of the Republic filed since July 1, 2021.
22. To what extent does the President's right of speech/expression extend, while appreciating his neutral position - typical of parliamentary republics. Can the right to speak be used as a constitutional tool in defense of actions performed by senior public officials?
Answer: Even in the period related to the elections of April 25, the President has been the only institutional actor who has defended the conduct of free and fair elections and out of any pressure of any form.
All messages of the President have had as focus, the realization of elections without tension, without violence, as an opportunity to fulfill the fundamental right to free expression by every citizen, in respect of the Electoral Code and all legislation related to electoral processes.
The President has always been loyal to the observance of the Constitution, the protection of principles, rights and fundamental freedoms of the citizens, and has drawn attention to any political or state actor who has tried to attack or violate them.
23. How does the President fulfill the role defined in the Constitution (Article 86) as a representative of the unity of the people?
Answer: The President performs this role, in support of the Constitution, the laws of the country, the jurisprudence of the Constitutional Court, in accordance with the role and position that the Constitution has given him.
In view of this role, the President has expressed his concerns to all state institutions and political entities, whenever he has found that they have gone beyond the framework of the Constitution and the law, with their activity, and especially in the period of elections where the socio-political situation in the country was severely aggravated.
The President encouraged and urged law enforcement agencies to act with priority, over tragic events such as that of Elbasan, where unfortunately there was a loss of life, of Kavaja, Fier, with the sole purpose of preventing the escalation of tension that will severely compromised the electoral process and social peace.
It is a fact that in all cases of these conflicts, the perpetrators belonged to the majority. As it is a fact that these events came as a result of not timely investigation of denunciations made for elements involved in electoral crimes, as a result of inaction in time by the police and law enforcement institutions to stop criminal elements, and political support that these elements enjoyed, which is publicly proven.
24. Is the control or orientation of the activity of the prosecution included in your framework of constitutional competencies, when we consider its definition as an independent institution in Article 148 of the Constitution?
Answer: Cooperation with the prosecution on issues of major public concern of which the President has been made aware is a constitutional and lawful cooperation.
In full respect of the independence of the respective institutions, especially regarding the electoral crimes of their perpetrators, the Institution of the President of the Republic has also communicated with the prosecution body, especially regarding the electoral crimes and their perpetrators.
The President's major concern has been the investigation by priority of electoral crimes, the no-violation of the vote and discouraging the extreme tension of the situation.
Time was limited and required priority in addressing these issues to prevent the commission and occurrence of consequences from criminal offenses or illegal activity.
25. Did the citizens have legal means available during the period that was investigated by the investigative commission? Has anyone been identified as having obstacles in exercising the right to use the relevant means?
Answer: Albanian citizens, as has been proven worldwide, have been placed under pressure from the ruling party, proven by the patronage system built on the theft of personal data and surveillance through patronage.
Clearly, these rights of citizens have been discouraged through these forms of pressure and blackmail, forcing many institutional, political and civil society actors to activate transparent instruments for the mass denunciation of electoral crime, in order to minimize its destructive effects on free and fair elections.
26. According to Article 132 of the Constitution, the decisions of the Constitutional Court are binding and cannot be challenged by any state body, not even by itself. Also, the Court is the only body vested with the competence of final interpretation of the Constitution and review of the constitutionality of the law. While the Court has faced a year of intensive and extremely busy work, the President has publicly questioned its decisions, and has even expressed appreciation for its judges based on their decision-making. Do you think that this position is included in the competencies and the right of expression of the Head of State?
Answer: The President of the Republic has implemented every decision of the Constitutional Court. There is not a single case where he has refused to implement these decisions.
Furthermore the President has been consistent and principled in his position, for a justice free from political pressures, which, he in the letter addressed to the Constitutional Court, explicitly says:
"In this regard, I guarantee you that, as President of the Republic, I will offer all my support, in the administration of constitutional justice, to keep the Constitutional Court free from political pressures, although currently the rest of the main structure of the state (such as parliament and government) not only are not committed to the proper functioning and protection of the legal order of our state, but have done and are doing everything, both through the legislative process and bad governance, putting in permanent danger in many cases the national interests, public interest, the sovereignty of the country and political pluralism, turning our country into a country where democracy is recognized only on paper, while in practice there is an autocratic one-party regime. "
In the Republic of Albania, no institution can go beyond the democratic system of accountability, including the Constitutional Court.
This is why the Constitution provides for disciplinary proceedings against members of the Constitutional Court, or the High Court, to increase their sense of responsibility, and to guarantee their accountability before the Constitution and the law.
It is true that the Constitutional Court has a supreme character in the Republic of Albania, but let us not forget that we are members of many international and European conventions, and are subject to international obligations and the jurisdiction of international courts.
Therefore, any decision of our judicial system that fails to provide justice, causes serious consequences for the state and citizens (it suffices to recall the penalties for Albania in international arbitration courts), holds responsible the authorities that have reviewed cases outside European standards.
Regarding this question, we can bring an answer of the Constitutional Court of Romania itself, regarding public criticism of the President of that country. In the Advisory Opinion no. 1, dated 5 April 2007, published in the Official Gazette of Romania no. 258, dated 18.04.2007, the Constitutional Court of Romania, among others, stated that[6]:
"Referring to the above facts, which are attributed to the President of Romania, it cannot be claimed that he has violated the provisions on the independence of the judiciary by criticizing magistrates, including judges of the Constitutional Court. […] ”
27. What relations should the President maintain with the institutions established and functioning according to the Constitution and laws, including the CEC, the Prosecution and the Constitutional Court? Do you think that your acts and attitudes have been in support of their independent activity? Is your statement "do not force the people to arrest you in flagrance through the law" acceptable as a means of communication?
Answer: The President of the Republic has had a constant and intensive communication with all institutions of the executive power or the justice system, on issues related to the observance of the Constitution, law enforcement, and in particular on problems related to electoral crime and guaranteeing processes for free and fair elections.
He has supported the independent institutions, so that they maintain their integrity, in the face of pressure from the executive, he has encouraged them to act as soon as possible, to prevent the aggravation of situations, and to have the law and only the law as their guiding compass!
In every statement of the President, whether formal, or through public messages of any kind, the reference has always been the Constitution and the Law!
Meanwhile, dozens of violations of the law and the Constitution have been confirmed by the government, to which the President has reacted not only by returning the laws, but also by setting in motion the institutions of justice, according to the relevant issues.
In communication with independent and constitutional institutions, there has not been a single case (other than the Assembly) that these institutions have expressed any claims or concerns regarding reciprocal communications with the Institution of the President of the Republic.
28. Public appearances and statements in the media were made at the request of relevant journalists or televisions or were they requested by you? How would public and media statements with harsh criticism of the government, often accompanied by epithets about it and its officials, serve to protect the general interest?
Answer: The requests of journalists for interviews or public statements are greater in number than the President is able to respond.
The President's views in defense of the Constitution and the law should not be censored by anyone. The Constitution and the laws create all space for the possibility of free and uncensored speech to be guaranteed even to the simplest citizen, let alone to the President of the Republic.
Naturally, the form, argumentation, tonality, individual, or emotional color, are indisputably inalienable rights to exercise freedom of speech, in order to protect the public and national interest, respect for the Constitution and the Law, which have been and remain the core of the content of any public communication of the President of the Republic.
29. Are the President's public calls before and during the campaign considered appropriate means of protecting the vote?
Answer: The President's calls for vote protection are an increased contribution to the very serious problem of guaranteeing free voting and avoiding the risk of vote-buying/selling, as phenomena that have severely shaken the institution of free voting in Albania, starting with the event in Dibra in 2016, the elections of 2017, 2019, which saw a massively spread phenomena, and were officially observed by the OSCE/ODHIR also during elections of April 25, 2021.
Major concerns about serious election problems have been raised in all OSCE/ODIHR reports, and in this spirit the President of the Republic, assessing very seriously the credibility of these reports, has oriented and focused his messages related to saving the integrity of the electoral process.
30. You have often mentioned the "people of March 2". What do you think is this category, assessing the participation of the people in the elections and the official results of the CEC for the participation in the elections and the votes received by the ruling majority.
Answer: The people of March 2, represent all Albanians, who want to be governed only by the Constitution and the law, who want democracy and not autocracy, and do not want to be subject to any abuser and violator of the law, be it the Prime Minister, Minister, public or political official, of any kind or level.
The people of March 2 are the ones who stood on the defense of the Constitution and supported the President of the Republic, refraining the majority to install the format of the "oath of constitutional judges to the notary (to Lana River)"; preventing the brutal desecration of the rule of law.
The people of March 2 were the people who demanded the establishment of the Constitutional Court, according only to the provisions of the Constitution of the Republic of Albania.
The people of March 2 are all Albanians who want to see Albania as a member state of the European Union, ruled only be the rule of law, and not by a captured state or (party) justice.
The people of March 2 are without question, a great concern for anyone who violates the Constitution, the law, who violates the public and national interest, and thus seeks to abuse at the expense of the sweat, toil, and sacrifice of ordinary citizens, of the honest and patriots of our country.
31. Expressions such as "sharpen the pitchforks on election day", "Tie up the madman", "three more days and the regime of violence comes to an end forever", "President, ready to sign the decree for the protection of the Republic! Albania of Albanians! Death to traitors!”, “If a drop of blood will be shed tomorrow, but also even a drop of tears, woe to you!”, “Punish without pity by vote on April 25, whoever blackmails you for your vote, whoever tries to buy your vote, anyone who has deceived you ","If a vote will be altered, a hand will be cut", or the expression "I will take you to prison ", what was their purpose, considering the role of the President as a representative of the unity of the people, as a super partes and moderating body of the other three powers?
Answer: This question may be influenced by the consequences of the toxic public propaganda of the ruling party, which continues its relentless attack on the Head of State.
Metaphors, epithets, allegories, and other literary figures would be an interesting subject of debate for linguists and philologists, but not for the Constitutional Court.
But in the function of respect and transparency with the Albanian citizens, I remind you that the campaign of April 25, 2021, was tense at extreme levels due to political actors, culminating in loss of life (as in the case of Elbasan), armed attacks (as the case of Kavaja), and dozens of other events up to very serious provocative situations (such as the events of Fier).
In such a difficult situation, which was escalating day by day, it was only the President of the Republic who took continuous and successive positions, to discourage this escalation and tension strategy, as well as to set in motion the institutions to act as soon as possible with the main purpose of preventing the consequences and/or other serious events.
Even in the ugly provocation of Fier, instigated by the illegal and provocative actions of the Municipality of Fier and the representatives of the majority, the President publicly asked the candidates of a political force (Social Movement for Integration) not to fall prey to the provocations of the ruling party, and overcome that situation wisely.
The public and written statements and denunciations of the President of the Republic have been fully in direct proportion to the very serious pre-election situation, and in order to prevent escalation and getting out of its control.
Deliberate, or even unintentional, misunderstandings on the positions of the President of the Republic comes from the deliberate extracting of certain terms from the full context of the event and the circumstances.
In particular, it comes from the deliberate confusion of "the conditional" (Alb: kushtore) with "the calling upon" (Alb: kushtrimi). It is enough to forget, or to remove the word "if", and everything changes like night and day.
The term "pitchforks" was used in Fier, during a certain conflict, referring to a conflict that the President of the Republic once experienced personally in Libofsha of Fier during 1994, when the police and bandits joined forces to violate the elections, and when Libofsha women were forced to grab pitchforks to protect their dignity and that of the community in which they lived.
In this statement, the President of the Republic mentioned the "pitchforks" as working tools of the inhabitants of the area.
It is incomprehensible why the majority should be concerned about the mentioning of the "pitchforks", if it really did not intend to affect the vote of the citizens on election day.
Anyone who would like to see a passive President in the face of a situation where the electoral process is bloodstained with the loss of lives, due to pressure from the ruling party but also the inaction of law enforcement institutions, it means that he seeks to serve the power of violence, and not the state where the freedoms and rights of citizens are respected.
Anyone who would like to see the President of the Republic passive before any government that abuses public money for vote buying and blackmailing citizens and administration officials for their vote, means that he is in favor of installing a one-party dictatorship and burying de facto pluralism in Albania.
Anyone who would like to see the President of the Republic sit passively in the face of this situation, wants to legitimize the violation and annihilation of the constitutional right to vote and to be elected, the basis for building a democratic state, the foundation of which is the free, equal, and uninfluenced voting.
Especially when the country enters very dangerous crossroads for its present and future.
Examples are many. The reaction of the Romanian President, Mr. Klaus Iohannis, of a NATO member country and an EU member state, is well known here as well.[7]
President Iohannis joined the protest of hundreds of thousands of Romanian citizens protesting against a law related to the conflict of interest, and he publicly declared in front of the protesters that the government action was the beginning of a coup.
All Albanian citizens remember that laws like the one protested by the President of Romania were approved every session in our one-party Assembly, according to the list of 56 laws that we have made available to the Court.
Photo from the presence of President Klaus Iohannis in the square with the protesters
This public pressure forced the Romanian government of the time to withdraw the law, and no one dared to accuse President Klaus Iohannis, or investigate him for this behavior.
This case demonstrated that when the public interest is put at risk, any strong reaction of the President is a guarantee, an opportunity and a hope, to protect the unity of the state and guarantee the interests of the citizens of the country.
While in Albania, the President of the Republic has faced a situation many times worse than that, because there was a holistic attack against the Constitution, the Constitutional Court, the rule of law, the public interest, the justice system as a whole, and the separation, independence and balance of powers.
32. Do you think that self-restraint is an obligation for the President's neutral constitutional position? In terms of how the powers of the President are conceived by the Constitution, do you assess that the President has a controlling role over other powers and if so how is it exercised?
Answer: Self-restraint, institutional and constitutional stance, and the equal distancing of the President from political forces, have been the essential characteristics of the behavior of the President, who has faced a world-renowned abnormal situation, especially after the burning of mandates by the opposition, and boycott of local elections, as well as of the Justice Reform, i.e. in the conditions of the seizure of all powers by the ruling party.
The President has constitutionally built a cooperative role and respect for other powers, and has been the only example of institutional communication and respect for their independence.
The President of the Republic has never attempted to take over a government. On the contrary, the opposite has happened!
The President of the Republic has never attempted to take over the competence of the Albanian Assembly. On the contrary, the opposite has happened!
It has always been the President of the Republic who, institutionally, officially, in writing, has requested their cooperation in order to prevent conflicts that could and have occurred.
The President is always put before fait accompli in all disputes that have occurred, incited by the majority and the institutions captured by it.
Self-restraint is relative and dynamic. It is important and necessary that the restraint of the President of the Republic be guided by the greatest interest of the country, the protection of the Constitution, as well as the proportionality dictated by the concrete circumstances and behaviors of other actors.
In view of this role, he has communicated every concern of constitutional and legal character, from the return for review of laws with serious problems of constitutional character, to the forwarding of numerous denunciations, related to electoral crimes and government abuses, in the electoral process.
The President of the Republic returned for reconsideration the unilateral amendments to the Electoral Code of 5 October, which reflected the constitutional changes of 30 July 2020, that constituted the destruction of the inclusive political consensus of 5 June and the changes to the electoral rules it produced on 23 July 2020, becoming the main source of tension and loss of trust between the parties.
All the developments that followed, proved fourfold the justice of the actions and deeds of the President of the Republic, because the reality proved that these unilateral changes produced destabilization, severe tension of the socio-political situation, extreme polarization and pronounced antagonism between political forces, as well as serious damage to the electoral process, which was confirmed by the OSCE / ODHIR Final Report of July 2021.
33. Also, do you think that the accusations against the representatives of diplomatic missions made in your public appearances in the media or official and social networks, mentioning them as corrupt or those statements for the risk of your physical integrity, have a factual basis and if so, have you reported it to the relevant bodies?
Answer: Ongoing, and especially during the election period, the President of the Republic has had and still has excellent communication with diplomatic missions and international institutions.
This communication is also proven in the evidence that we have submitted and that has been in writing, through numerous official documents submitted to them, as well as the official meetings.
Communication is always built based on full respect of the Constitution, laws that are in force, sovereignty and reciprocity.
The President of the Republic has categorically refused any kind of intervention or public stance by particular diplomats, who directly or implicitly have supported the violations and violators of the Constitution, the unilateral violations of the agreement of June 5, 2020, violations of the law, taking under protection persons under investigation, and violators of the integrity of independent institutions (Dvorani case, but not only).
The President has categorically refused any intervention by particular actors of the diplomatic corps, who have acted in open violation of their diplomatic status and the Vienna Convention, daring to dictate to the President of the Republic how he should issue his constitutional acts, even violating the Constitution and degrading the process of appointments to the Constitutional Court, to silently accept the flagrant seizure of the powers of the Head of State, resulting in the capture of the Constitutional Court, and not only.
The President of the Republic has previously faced the illegitimate interventions of certain diplomats, including during the process of building justice institutions, the unjustifiable blocking of the Judicial Appointments Council, the unconstitutional appointment with 69 votes of the Interim General Prosecutor, or for the manipulative and non-transparent actions of the former head of Justice Appointments Council regarding the appointment of judges of the Constitutional Court.
Confronted with the principled and constitutional position of the President of the Republic, these diplomats have withdrawn from their positions and this has been an indisputable proof of the principality of the President of the Republic in every situation.
The President of the Republic has a fully documented and very constructive official relationship with the main partners of our country, and in particular for the Justice Reform, especially with the European Union, the United States of America, and the United Kingdom.
These partners have always been informed in a timely manner, officially and in writing by the President of the Republic on the feverish efforts of the government and the majority to seize the justice system, especially the Constitutional Court, in violation of the Constitution of the Republic of Albania.
The President of the Republic has done everything to prevent public conflicts that occurred between the President and the Assembly, or the Justice Appointments Council and the government, for the members of the Constitutional Court, which could have been completely avoided if the President had not been put before fait accompli deals, for which he had issued early warnings, repeatedly affirming that he would not tolerate them.
The President of the Republic has reproached every diplomat who did not honor the June 5, 2020 agreement, but with public statements offered an alibi to the majority to make unilateral changes to the June 5 agreement (this was the main source of tension and distrust of parties on the eve of elections).
The President of the Republic has never received any official concern from any international partner about his conduct or acts.
The President has in person officially expressed his concerns about the incorrect behavior of certain diplomats, informing officially also the countries or organizations they represent.
The President of the Republic has never interfered in the competencies of any diplomatic mission or any partner country, but unfortunately, there have been certain diplomats who have publicly questioned the decrees of the President, openly taking the side of the majority in capturing the justice system, especially the Constitutional Court.
The opinions of the Venice Commission on these issues are well known, in which all the acts of the President have been assessed as fair, legitimate, reasonable, and the causes of these conflicts have been clearly identified.
This position of the President of the Republic will not ever change in the future, as the implementation of the Constitution, the national interest and the interest of Albanians, are sacred and inviolable by any local or foreign actor.
In addition to these facts, please study carefully chapter III, page 11 to page 83, of the President's positions, submitted since July 1, 2021.
In conclusion, if this question of the Rapporteur has been raised based on the allegations of the Assembly, the above contains the detailed answer.
But if as a Constitutional Court, you have any official claim from any partner country, or foreign representation in our country regarding the incorrect behavior of the President of the Republic, please let us know and we will make available additional materials to clarify the Constitutional Court.
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ANSWERS TO THE QUESTIONS BY JUDGE, MRS. FIONA PAPAJORGJI
1. Based on the claims on the procedures followed by the Assembly, it results from all the documentation that the first communication on this issue dates back to 4.5.2021, and the final date is 24.5.2021. Regarding the right to be heard, all this time has not been enough time to prepare the defense?
Answer: The procedures and Rules of Procedure of the Albanian Assembly are very clear and leave no room for interpretation.
The refusal to hear the President of the Republic in the Committee on Legal Affairs is a defining and insurmountable procedural moment for the further establishment of the Commission of Inquiry, and other moments that follow.
Therefore, in this legal context, it is clear that the date 24 May 2021 no longer has any legal meaning, after a very serious procedural violation consumed by the Commission responsible for legal issues.
2. The law has a 4-month deadline for the activity of Commissions of Inquiry. A comment on point 6, article 4, of law no. 9981/2002: If, in your opinion, the aim is neither to set up nor to function the commissions of inquiry during this period, was another wording needed (referring to the provision)?
Answer: This question can be addressed to the Assembly, while the detailed explanations on the issue of the 4-month deadline can be found in the position of the President of the Republic, submitted since July 1, 2021.
3. In the Constitution, apart from article 65, paragraph 4, is there any other restriction for the final period of the activity of the Assembly (referring to the final period of the ending of the legislature)?
Answer: Article 77, of the Constitution, states very clearly that the obligations of the Assembly on investigative commissions are regulated by law no. 8891/2002.
This law has clearly provided in article 4, paragraph 6, the obligations for the Assembly of Albania, according to which "Commissions of Inquiry cannot be established during the 4 months before the ending of the mandate of the Assembly."
More detailed explanations are given in the position of the President of the Republic filed on July 1, 2021.
4. Regarding Article 77, paragraph 2, of the Constitution: Does the Commission of Inquiry differ from the commission according to Article 90 of the Constitution? Do you think that the commission has the same competencies according to article 77, point 2, and the one according to article 90, point 2, of the Constitution?
Answer: The Assembly itself, which has taken the initiative for impeachment, has clearly referred to the articles on which it has based the initiative and which are related to your question. They are the articles 77, 78, of the Constitution, the provisions of law no. 8891/2002 and Rules of Procedure of the Assembly. Thus, the Assembly itself has not referred in any case to Article 90 of the Constitution.
For more you may see the decision of the Assembly itself.
5. You claim in your position that a new constitutional dispute has been created. Do you think the way to settle this dispute is the right one?
Answer: Clarifications on this question are given in questions no. 12 and no. 13, filed by the Rapporteur, Mr. Kalo.
The President could not respond or react differently outside the nature of this issue initiated by the Assembly and formalized only by decision no. 55/2021, which is considered the request of the Assembly for the Constitutional Court.
The ascertainment and evidencing of this dispute was done in the final period of the activity of the Commission of Inquiry and which was formalized with the report of this commission on 9.6.2021.
6. Article 90, paragraph 2, refers to the phrase "serious violation of the Constitution". In this case, we leave aside the "serious crime". You claim that in the actions of the President, there is no violation, or there is no "serious violation" of the Constitution?
Answer: The President of the Republic, in none of his actions, has committed any violation of any provision of the Constitution or of any particular law.
All the facts claimed by the Assembly are simply and only interviews and opinions of the President of the Republic, which have no connection at all, with any kind of violation. The opposite is true.
The President in any case, has demanded the implementation of the Constitution and the law, and has called on all institutional and political actors to respect them without any deviation.
These clear messages are public and known to all Albanians.
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ON THE QUESTIONS BY THE JUDGE, MRS. ELSA TOSKA
1. According to the documentation and what you submitted at the hearing, you have chosen the procedural side as a defense strategy. In your request, you stated that you request the repeal of 4 decisions of the Assembly. During the defense, you do not mention the substantive side of the reasons for the decision 54/2021, or 55/2021. Why this kind of attitude?
Answer: There has been a very clear and exhaustive position both in terms of flagrant and obvious procedural violations, as well as the complete lack of substantive matter by the Albanian Assembly that has initiated the impeachment.
All the allegations of the Assembly are being based only on one article that no longer exists in the Constitution of Albania, that of "agitation and propaganda".
The position of the President of the Republic, submitted on July 1, 2021, the files submitted on February 3, 2022, are complete and exhaustive in terms of both procedural and substantive aspects.
2. The President during the election period has created a platform "denounce electoral crime". Can you tell us if there are previous practices, similar to previous presidents? Do you think that this portal creates overlapping of competencies of other institutions?
Answer: In the conditions of a very serious situation related to the pressure against free voting and a multitude of electoral crimes that were evident in different ways, the President with this platform has joined all the efforts of various actors interested in denouncing electoral crime. And has chosen this communication opportunity, which facilitated denunciation due to transparency and trust in the Institution of the President of the Republic. This initiative only strengthens the possibilities of denouncing electoral crime, through a new window of communication with the public.
On page 72, of the submissions filed on February 3, 2022, as well as in the material submitted since July 1, 2021, page 67 onwards, it is stated that the presentation of the portal itself has clearly clarified the purpose of undertaking this initiative and its operation.
In the end, every citizen is free to open a page on social networks or in any form of online publication, especially when it comes to free voting. Let alone, the President of the Republic who is the guarantor of the Constitution and when it comes to free voting.
Let us not forget that the electoral crimes of Dibra, or Shijak in recent years, shocked the European and world institutions and media, regarding the cooperation of the state with the gangs for the violation of the elections. Their failure to timely investigate or punish the real perpetrators clearly identified in the wiretaps, held hostage for years the opening of Albania's negotiations with the European Union.
Has there been a former President in this situation of state capture, who has exercised his mandate in such extreme circumstances of state capture, without a Constitutional Court for 33 months, without a High Court for many years, with an Assembly with 122 out of 140 MPs as required by the Constitution, in the conditions when the opposition abandoned the mandates in bloc, and with local government entirely controlled by one party?!
Any attempt to judge the acts and actions of the President of the Republic outside these contextual facts known worldwide and by all citizens of the Republic, is superficial, partial, biased, and in strong contradiction with the reality of the circumstances in which the institutions have acted.
3. The President is an unconditional subject that can set in motion the Constitutional Court. For one of the decisions that the Constitutional Court has given for years, the President reacted in writing to the judges. How does the President understand his role as an unconditional subject? How does he understand the role of the constitutional judge, when they vote "for", "against", accept or reject a request?
Answer: The answer to this question is extensively explained in the answer given to the Judge Rapporteur for question no. 26.
4. Why did the President choose to physically go to the headquarters of a political party?
Answer: It is entirely at the discretion of the President of the Republic to choose the form of how he holds meetings, visits, takes action, or how he interacts with citizens, political actors, or institutional ones.
In any case, the President of the Republic, in compliance with the law, has communicated about certain events or situations in writing, or in his direct presence. In full respect of this way of action, legal and institutional, has communicated even in the case of this ugly event, illegally provoked by the Municipality of Tirana, towards a political entity, as a sign of revenge only for the fact that it was registered in the opposition coalition.
Political attack on a political party by the police, especially during the election period, undermines the public interest.
Furthermore, the acts certifying the violent and illegal actions of the Municipality of Tirana are attached to the filed submissions.
5. In your assessment, what kind of methodology is used to measure the decrease or increase of the role of the President, as a representative of the unity of the people? What parameters would lead us to the assessment that the authority of the President has decreased, as claimed by the Assembly in its position as a consequence? On what parameters would you evaluate the Institution of the President, to express that the authority of the President has not decreased, but has increased?
Answer: There is only one parameter that evaluates the activity of the President of the Republic - it is the full unwavering and unconditional respect of the Constitution and the values and principles protected by it, beginning with the Preamble of the Constitution.
The President of the Republic, with his formal actions and public attitudes, has proved worldwide that he has fully fulfilled and at the highest level this task and his mission.
However, we assure you that, in the daily contacts of the President of the Republic with the citizens and the people, he is inspired by the appreciation they have for his courage and determination as President to defend their rights every day.
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ON THE QUESTIONS BY JUDGE MRS. MARSIDA XHAFERLLARI
1. I will dwell on the same question I asked the Assembly. In your opinion, what is the importance of the procedure in this type of process? I am summarizing what the Assembly said, that not every procedural violation according to them, affects the validity of the result in the end. Your position on this, in relation to the element of urgency in the process. You say that the Assembly left the deadlines to the President of the Republic within few hours. Is the expiration of a legal deadline a cause that justifies urgent action?
Answer: Procedure is essential in any process. Failure to follow the procedures violates the content of the process itself and nullifies its entire product.
The European Court of Human Rights, in its jurisprudence, on the basis of allegations and reviews of violations of fundamental human rights, treats with priority the effective means, the right to be heard, the observance of the procedure, as essential elements of a due process of law.
Adherence to the procedures in every process, be it legal, or even chemical or laboratory, is in function of the content of the process itself. Otherwise, the legislator would not provide for either a Code of Administrative Procedures, or a Code of Civil Procedure, or a Code of Criminal Procedure, or procedures defined in special laws or acts that regulate the activity of higher bodies, such as the Assembly, who has violated the procedure itself.
The one-party assembly had only one political objective: impeachment of the President of the Republic.
The one-party Assembly has been fully aware of the absolute impossibility of conducting a regular investigative procedure, as required by the Constitution, the law and the Rules of Procedure of the Assembly.
For these reasons, the entire procedure followed is invalid, and unfortunately, will remain in the records of the Albanian Assembly as one of the processes with the most serious conscious procedural violations that have ever occurred.
As such, a clearly political process, pre-determined and prejudiced, can produce nothing but results without any value, either from a legal point of view or from the point of view of the assessment that public opinion will make of it.
2. In your objections you have focused on the procedure and you have not focused on the veracity of the facts. I do not see you disputing the veracity of the facts. So confirm me if I got it right: you claim the facts are incomplete?
Answer: It is clear to everyone that we are not dealing with facts at all, but we are dealing simply with literary metaphors and conjectures about events that do not exist.
Issues of philosophy of expression are not the subject of the work of the Constitutional Court, but can be interesting arguments for literary circles and discussions between professionals of literature and linguistics.
We have been very clear and detailed in the submission made before this Court regarding the so-called facts alleged by the Assembly.
These so-called facts, or metaphorical interpretations of the Assembly, are badly manipulated, with sentences and phrases abusively detached from the context, which are built on conjectures, and assumptions about events that did not occur.
“The conditional” (Alb: kushtorja) from “the calling upon” (Alb: kushtrimi) differ as day from the night.
3. One of the violations referred to in the Report, relates to independent institutions (when addressing the SPAK, etc.). According to the Report, these communications used standard sentences, such as "priority action". This has been interpreted by the Assembly as an incentive. A letter to the Constitutional Court was also used. Have you had a response from these independent bodies, either in writing, or any complaints or reports of interference in independent institutions?
Answer: The President of the Republic has communicated continuously with independent institutions, on issues and problems related to the observance of the Constitution and the Law, where the President has informed them, has raised problems related to their field of activity, encouraging action as soon as possible, to provide solutions and to prevent situations or serious consequences.
Referring to the question, none of these institutions or independent bodies have ever had any complaints or remarks regarding the communications of the President of the Republic.
4. What is specific about the principle of institutional continuity from one legislature to another? This refers to the provisions of Article 65, paragraph 4 of the Constitution, Article 87, paragraph 1, of the Rules of Procedure of the Assembly and Article 4, of Law no. 8891/2002? Also, your position in relation to the fact that the activity of the Assembly is regulated by the Rules of Procedure of the Assembly, unlike other constitutional institutions, whose activity is regulated by law.
Answer: The current X Legislature of the Assembly cannot represent the will for the request made to the Constitutional Court by the previous (IX) Legislature, whose mandate terminated on September 9, 2021.
The Speaker of the Assembly of Albania, who has simply and only functions of administration of the administrative activity of the Assembly of Albania, and who represents the X Legislature in relation to third parties, has no right to replace, represent, or confirm the will of the body of MPs that took the decision no. 55/2021, in the IX Legislature. This body is completely different from the current composition of the X Legislature, when only 40 current MPs were members of the previous legislature when it was voted for the impeachment of the President.
The Speaker of the Assembly has no right to replace or take the decisions that the Assembly of Albania takes only in the plenary session with the direct vote of its MPs!
Referring to the principle of continuity between the two legislatures, the Assembly of Albania itself, according to Article 87/1, of the Rules of Procedure of the Assembly, with the ending/closure of the legislature of the Assembly, drafts submitted for review and approval, part of the work program of the Assembly, which for various reasons have not managed to be approved in plenary session, returns to the initiator. Even when the initiator is still an MP, he must re-submit the initiative, and the Plenary Session must vote for its inclusion in the work program of the Assembly.
In this case, we are dealing with a decision that has no regulatory/normative nature, to claim that the principle of continuity is respected, but decision no. 55/2021, of the Assembly, according to the Constitution and law no. 8577/2000, is the request that sets in motion the Constitutional Court, which should have fully reviewed this issue within 3 months and by the maximum date of September 9, 2021.
Only in this way, the Court could obtain the will of the IX Legislature, whether or not it stood by the submissions field, despite having formalized this request through an act called a decision. Other reasons are presented in the position filed at the Constitutional Court since July 1, 2021, the requests of the President of the Republic filed in October-November 2021, as well as the preliminary request filed in the session of February 1, 2022.
5. Regarding Article 90 of the Constitution: do the conjunctions “and” necessarily connect the “serious violation” and the “crime” with each other, or do they also remain autonomous?[8] Explaining it in relation to the text of the provision that stipulates that the Constitutional Court confirms the guilt of the President.
Answer: The provision of Article 90 is out of our interpretative interest, as the President of the Republic has nothing to do with the stipulation of this provision.
The Constitutional Court itself has stated that the initial interpretation of a norm is made by the body that implements it. While the final interpretation is made only by the Constitutional Court.
There is no fact to connect our interpretive interest with the provision of Article 90 of the Constitution, as the President and his activity has nothing to do with the provisions of this article.
6. One of the alleged violations is that of violation of the oath formula. Do you have any objection to this claim, on the violation of the oath formula?
Answer: There is no violation of the oath formula.
The allegations of the Assembly are simply a political error in function of the pre-determined, pre-planned and prejudiced objective of the Assembly on this issue.
7. What do you think is the purpose of the constitutional prohibition that the President cannot be a member of a political party?
Answer: The provisions of Article 89 of the Constitution have nothing to do with the President of the Republic, because he has no conflict with any of the provisions of this prohibition formulated in this provision.
8. I would like your assessment on the importance of the legitimacy of the Assembly in this process. The process is illegal, in any case it lacks legitimacy?
Answer: There is no room for any discussion that an institution without legitimacy can never produce a legal product.
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ON THE QUESTIONS BY JUDGE MR. ALTIN BINAJ
1. Regarding the allegation of violation of the right to be heard in the Law Commission or the Assembly: what is the nature of this violation for the entire procedure? Is the violation substantial or light?
Answer: The right to be heard is a fundamental principle and a constitutional right, which even in the case of procedures undertaken by the Assembly, is clearly defined in the Rules of Procedure of the Assembly (Article 112, point 2 thereof).
There is no question that the violation of this fundamental right constitutes a very serious and insurmountable violation.
2. Regarding the allegation of denial of the right to be heard in the initial stage: for the other stages, was there enough time for the President to exercise this right, and why was it not exercised?
Answer: Without the hearing of the President of the Republic in the Committee on Legal Affairs, it could not be passed to the establishment of the commission of inquiry. This very serious violation that has been committed cannot be "cured", as one stage conditions the transition to the next stage.
3. For objective, or subjective reasons, did the President have to be in person, or could he be represented by representatives at these stages?
Answer: The Committee on Legal Affairs was obliged to hear the President of the Republic, who has officially confirmed his willingness to be heard by this Committee.
Both the right to be heard and the time needed to prepare are essential elements guaranteed by law, which realize the right of the President of the Republic to be heard.
4. Referring to the definitions of terms given by the law for commissions of inquiry, and the definitions or terms used by the Rules of Procedure of the Assembly, why do you place the equal sign between the moment of establishment and continuation of the activity of the Commission of Inquiry? (this bearing in mind that the Regulation, uses only the terms on the establishment and termination of the activity of the commission).
Answer: We have always demanded only the observance of the provisions of the law on investigative committees (no. 8891/2002) and the Rules of Procedure of the Assembly, which have been indisputably proven to have been systematically violated in function of the pre-determined political objective of the initiative for the dismissal of the President of the Republic.
In our submissions we have exhausted all the argumentation on the exact definitions that the Regulation and the law have for the investigative commissions, related to the Constitution of the Republic of Albania.
5. The next question is related to the first question asked by the Rapporteur, if you confirm the veracity of the evidence brought by the Assembly (on statements, declarations, interviews, etc.). If you were to answer "yes" to this question, then I would raise these other questions:
- Regarding the submissions of the Assembly (pages 14 to 17 and 28 to 30 of the Decision of the Assembly), the use of terms such as "pitchforks", "hand cuts", etc., why was there a need to evoke such actions, when criminal legislation has Relevant criminal penalties for criminal offenses against the electoral system, as there are sanctions in the Electoral Code?
- Does the evocation of such punishments involving mutilation go in line with the obligation we have as a state under the Convention against Torture?
Answer: Since the question is related to the same question of the Rapporteur (no. 1 and no. 31), we bring you the relevant explanations.
Evidence obtained through an irregular legal process, contrary to the Constitution, the law and the rules established for this purpose, as we have submitted, are unusable and invalid. All the evidence that the Assembly claims to have submitted to the Constitutional Court, has been obtained through an unconstitutional process, contrary to the principles and provisions of law no. 8891/2002, and the Rules of Procedure of the Assembly. Consequently, and the product produced based on them, is invalid and unusable.
As required in our submissions, the Constitutional Court has the duty to repeal all decisions of the Albanian Assembly.
However, this question has been constructed and influenced by the toxic public propaganda of the ruling party, which since April 2021 has been continuously attacking the Head of State.
Metaphors, epithets, allegories, and other literary figures would be an interesting subject of debate for linguists and philologists, but not for the Constitutional Court.
But in the function of respect and transparency with the Albanian citizens, we remind you that the campaign of April 25, 2021, was tense at extreme levels due to political actors, culminating in loss of life (as in the case of Elbasan), armed attacks (as the case of Kavaja), and dozens of other events up to very serious provocative situations (such as the events of Fier). All these events have been instigated by representatives of the ruling party and as a result of the inaction of law enforcement institutions.
In such a difficult situation, which was escalating day by day, it was only the President of the Republic, who maintained continuous and successive positions, to discourage this escalation and this strategy of tension, as well as to set in motion the institutions to acted as soon as possible with the main purpose of preventing the consequences of, or other serious events.
Even in the ugly provocation of Fier, the President publicly asked the candidates of a political force (Socialist Movement for Integration) not to fall prey to the provocations of the ruling party, and to overcome that situation wisely. The public and written statements and denunciations of the President of the Republic have been fully in direct proportion to the very serious pre-election situation and in order to prevent escalation and getting out of its control.
Anyone who would like to see the passive President in the face of a situation where electoral processes bleed from the loss of human life means that he serves the power of violence and not the freedoms of citizens.
Anyone who would like to see the President of the Republic passively before the government that misuses public money to buy votes and blackmail citizens and administration officials into voting for them, is in favor of establishing a one-party dictatorship and burying de facto pluralism in Albania.
Anyone who would like to see the President of the Republic, passive in the face of this situation, wants to legitimize the violation and annihilation of the constitutional right to vote and to be elected, the basis for building a democratic state, where whose foundation is the free, equal, and uninfluenced voting.
Especially when the country enters very dangerous crossroads for its present and future.
Examples are many. The reaction of Romanian President Klaus Iohannis,[9] a NATO member and an EU member, is well known.
President Iohannis joined the protest of hundreds of thousands of Romanian citizens protesting against a law related to the conflict of interest, and he publicly declared in front of the protesters that the government action was the beginning of a coup.
This public pressure forced the Romanian government of the time to withdraw the law, and no one dared to accuse Romanian President Iohannis, but rather the Romanian people and the wider international opinion, supported this action in defense of the rule of law, the Constitution, and the fight against corruption.
This case demonstrated that when the public interest is put at risk, any strong reaction of the President is a guarantee, an opportunity and a hope, to protect the unity of the state and guarantee the interests of the citizens of the country.
Meanwhile, in Albania, the President of the Republic has faced a situation many times worse than that, because it was being directly attacked the Constitution, the Constitutional Court, the rule of law, the public interest, the justice system as a whole, and the separation, independence and balance of powers.
6. The Assembly alleges that in public appearances there were insults against persons with public functions. Is this fact accepted?
Answer: The President of the Republic has been attacked in all kinds of forms, and this campaign of insults and denigration has been personally inspired by the Chairman of the Socialist Party and the Prime Minister of the country, Edi Rama.
Very serious public facts in this regard are found in the position submitted since July 1, 2021, starting from the placement of large public Posters placed on the national axes of the country, from the Capital, to other cities, as well as in the electoral political activities of the Prime Minister, who with videos, photos, words, openly and publicly insulted the President of the Republic.
These facts are known to all Albanians. For this question, we have provided exhaustive explanations, also in response to question no. 2, of the Rapporteur.
It is important that the Court also reviews three videos showing insulting and offensive calls of the Prime Minister to the President in some rallies and activities. Attached to this material find the relevant videos in CD format.
For more information, please refer to pages 66, 70, and 97-103 of the files submitted since July 1, 2021.
7. Based on the crisis situations in the country as you quoted, the President has made efforts to address the problems in the relevant institutions. We acknowledge that he has these concerns, at the moment he makes them publicly known, even in a crisis situation, does he have the obligation to be restrained when he expresses them? Or may it not be?
Answer: The President of the Republic, in an institutional and legal way, has widely expressed and addressed the problems, and with his restraint has been the only institutional balancing factor in the country, at a time when political actors had exacerbated the situation which had escalated to even with loss of life.
Self-restraint is relative and dynamic. It is important and necessary that the restraint of the President of the Republic be guided by the greatest interest of the country, the protection of the Constitution as well as the proportionality dictated by the concrete circumstances and behaviors of other actors.
8. The content of the letter addressed to the Constitutional Court is one of the claims of the Assembly. Do such public materials serve the unity, the cohesion of the judiciary, or is it the opposite?
Answer: This answer is explained in the answer given to question no. 26 of the Judge Rapporteur Mr. Kalo.
However, we bring to your attention: The President of the Republic has implemented every decision of the Constitutional Court. There is not a single case where he has refused to implement these decisions.
For more, the President has been consistent and principled in his position, for a justice free from political pressures, which, he in the letter addressed to the Constitutional Court, explicitly says:
"In this regard, I guarantee you that, as President of the Republic, I will offer all my support, in the administration of constitutional justice, to keep the Constitutional Court free from political pressures, although currently the rest of the main structure of the state (such as parliament and government) not only are not committed to the proper functioning and protection of the legal order of our state, but have done and are doing everything, both through the legislative process and bad governance, putting in permanent danger in many cases the national interests, public interest, the sovereignty of the country and political pluralism, turning our country into a country where democracy is recognized only on paper, while in practice there is an autocratic one-party regime. "
No institution goes beyond the democratic system of accountability, including the Constitutional Court.
This is the reason that the Constitution also provides for disciplinary proceedings against members of the Constitutional Court, or the High Court, in order to increase their sense of responsibility, and to guarantee their accountability before the Constitution and the law.
It is true that the Constitutional Court has a supreme character in the Republic of Albania, but let us not forget that we are members of many international and European conventions, and we are subject to international obligations and the jurisdiction of international courts.
Therefore, every decision of our judicial system that fails to administer justice, causes serious consequences for the state and citizens (it suffices to recall the penalties for Albania in arbitration courts), which charges the authorities that have reviewed cases outside European standards.
Regarding this question, we can bring an answer of the Constitutional Court of Romania itself, regarding the criticism of the President of that country, for some decisions of the Romanian Constitutional Court. In the Advisory Opinion no. 1, dated 5 April 2007, published in the Official Gazette of Romania no. 258, dated 18.04.2007, the Constitutional Court of Romania, among others, stated that[10]:
"Referring to the above facts, which are attributed to the President of Romania, it cannot be claimed that he has violated the provisions on the independence of the judiciary by criticizing magistrates, including judges of the Constitutional Court. […] ”
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ON THE QUESTIONS BY THE JUDGE, MRS. SONILA BEJTJA
1. Regarding the recommendations of the Commission of Inquiry in 2020, for an organic law for the President of the Republic, the Assembly acknowledged that it is in the drafting stage. Have you been involved for any comments, opinions, consultations on this law so far?
Answer: The institution of the President of the Republic has no knowledge of such an initiative, nor of any submission of the draft law for discussion or table.
It is true that the Commission of Inquiry set up in 2019 for the investigation of the President, closed its activity in July 2020 and with decision no. 48/2020, dated 27.7.2020, approved the report approved by the Assembly, where as a conclusion in point 142, among others, the Albanian Assembly approved the recommendation for the revision of the Constitutional provisions, to clarify the formal and substantial competencies of the President, and their provision expressly in the organic law on the Institution of the President of the Republic.
This Commission of Inquiry, as it is known, closed its activity was closed without result, because there were no violations of the Constitution by the President to legitimize the impeachment, while the Parliamentary Special Commission of Inquiry ceased to exist. See also pages 38-41 of the written submissions in the Constitutional Court.
2. You raise claims for the 4-month deadline and for the new need of confirmation of the will of the IX Legislature, from the X Legislature. Do you think that the reaffirmation of this will can correct the legal violations of that investigative commission? On which law should this re-confirmation of the will be made?
Answer: Regarding the serious procedural violations, already proven, and consumed continuously and repeatedly, they are insurmountable and burden the Albanian Parliament with heavy responsibility.
For the rest of the question, we are bringing to your attention the explanations given for question no. 2, the Rapporteur:
The current 10th Legislature of the Assembly cannot represent the will for the request made to the Constitutional Court by the previous Legislature (IX), whose mandate ended on September 9, 2021.
The Speaker of the Assembly of Albania, who has simply and only functions of administration of the administrative activity of the Assembly of Albania, and who represents the X Legislature in relation to third parties, has no right to replace, represent, or confirm the will of the body of MPs that took the decision no. 55/2021, in the IX Legislature.
This body is completely different from the current composition of the X Legislature, when only 40 current MPs were MPs in the previous legislature when it was voted for the dismissal of the President.
The Speaker of the Assembly has no right to replace or take the decisions that the Assembly of Albania takes only in the plenary session with the direct vote of its MPs!
Referring to the principle of continuity between the two legislatures, the Assembly of Albania, according to Article 87/1, of the Rules of Procedure of the Assembly, with the ending/closure of the legislature of the Assembly, draft acts submitted for review and approval, part of the work program of the Assembly, which for various reasons failed to be approved in plenary session, returns it to the initiator. Even when the initiator is still an MP, he must re-submit the initiative, and the Plenary Session must vote for its inclusion in the work program of the Assembly.
In this case, we are dealing with a decision that has no regulatory/normative nature, to claim that the principle of continuity must be respected, but decision no. 55/2021, of the Assembly, according to the Constitution and law no. 8577/2000, is the request that sets in motion the Constitutional Court, which should have fully reviewed this issue within 3 months and by maximum date of September 9, 2021.
Only in this way, the Court could obtain the will of the IX Legislature, whether or not it stood by the submissions filed, despite having formalized this request through an act called a decision.
Other reasons are set out in the position filed with the Constitutional Court since July 1, 2021, in the requests of the President of the Republic filed in October-November 2021, as well as in the preliminary request filed in the session of February 1, 2022.
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ON THE QUESTIONS BY THE JUDGE, MRS. VITORE TUSHA
1. You have opposed the whole procedure followed by the Assembly, and as one of the consequences you have identified the intervention of the Assembly in the role and position of the President according to the Constitution, as well as the creation of a new dispute of competence, calling it revenge or attempt to minimize the role of the Head of State. Please explain more specifically the consequences that have come in this regard.
Answer: Serious, repeated, and successive procedural violations committed by the Albanian Parliament have resulted in: the denial of the fundamental rights and freedoms provided by the Constitution; conflict between the two bodies (Assembly-President) due to the long-term non-review of this conflict by the Constitutional Court. The conflict was transferred from the IX legislature to the X (current) legislature.
Such a situation, with a case pending against the President of the Republic, has enabled the ruling majority to continue illegal, unprincipled, and immoral attacks on the President of the Republic, and amplified by the media that support the Government, these facts are widely proven.
The systematic labeling of the Head of State with terms such as "dismissed President" for months, is to the detriment of the unity of the people he represents and has created an unnecessary artificial debate, which also goes to the detriment of the country's image and his credentials in the international arena.
This situation of suspension has created difficulties in communication between institutions, where institutions depending on the executive, have often gone so far as to delay for a long time the provision of information, their transmission in a very truncated way, or even not the answer at all, moreover it was a matter of high public interest.
2. Do you bring the composition of the IX Legislature of the Assembly (i.e. the resignation from the mandates and the composition of the Assembly after this moment) as a fact regarding the context of the development of events? How does this fact relate to the concrete issue? Does it influence the process? Or just mention it in the context of the facts (not forgetting that that legislature has adopted amendments to the Constitution and adopted laws during its activity).
Answer: The issue of legitimacy of the IX Legislature has been exhaustively explained in the position of the President of the Republic deposited on July 1, 2021, as well as in that deposited on 3.2.2022.
3. By what means, manner, procedure can the will of the IX legislature, the X legislature, formalize?
Answer: In response to your question, we forward our clarifications in response to question no. 2 of the Rapporteur, and question no. 4, of Judge Marsida Xhaferllari:
The current X legislature of the Assembly cannot represent the will for the request made to the Constitutional Court by the previous legislature (IX), whose mandate ended on September 9, 2021.
The Speaker of the Assembly has no right to replace or take the decisions that the Assembly of Albania takes only in the plenary session with the direct vote of its MPs!
Referring to the principle of continuity between the two legislatures, the Assembly of Albania, according to Article 87/1, of the Rules of Procedure of the Assembly, with the ending/closure of the legislature of the Assembly, draft acts submitted for review and approval, part of the work program of the Assembly, which for various reasons failed to be approved in plenary session, returns it to the initiator. Even when the initiator is still an MP, he must re-submit the initiative, and the Plenary Session must vote for its inclusion in the work program of the Assembly.
In this case, we are dealing with a decision that has no regulatory/normative nature, to claim that the principle of continuity must be respected, but decision no. 55/2021, of the Assembly, according to the Constitution and law no. 8577/2000, is the request that sets in motion the Constitutional Court, which should have fully reviewed this issue within 3 months and by maximum date of September 9, 2021.
Only in this way, the Court could obtain the will of the IX Legislature, whether or not it stood by the submissions filed, despite having formalized this request through an act called a decision.
Other reasons are set out in the position filed with the Constitutional Court since July 1, 2021, in the requests of the President of the Republic filed in October-November 2021, as well as in the preliminary request filed in the session of February 1, 2022.
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ON THE QUESTIONS BY REPRESENTATIVES OF THE ASSEMBLY, MRS. KLOTILDA BUSHKA AND MR. ERIND MËRKURI
1. The issue of the unconstitutionality of the Assembly was raised in your claims. While the Assembly, during the legislature, launched two investigative procedures, in the first of which the President participated. In 2021, however, he did not recognize the legitimacy of the Assembly. What changed in what happened?
Answer: The Committee on Legal Affairs on May 5-6, 2021 denied the right to be heard to the President of the Republic, as the Rules of Procedure of the Assembly in Article 112, point 2, stipulate.
It is quite clear that all other procedural steps and stages have been irreparably violated and by this substantial illegality. While the procedural situation was aggravated even more because the Assembly could not set up and let alone make function a Commission of Inquiry in the last 4 months of its mandate to the Assembly.
While Mrs. Bushka knows very well that the IX Legislature has set up two investigative commissions against the President of the Republic. Both times, the request was submitted by the majority MPs and reviewed by the same Committee and Chairman for Legal Affairs.
But, there is a fundamental difference between these two cases. Because, in the first case, of June 2019, when the request of some MPs was submitted for the establishment of the commission of inquiry against the President for postponing the date of the local elections, as referred to in the question by Mrs. Bushka, Chairman of the Committee on Legal Affairs, Mr. Ulsi Manja, through letter no. 2502/3 prot., Dated 19.06.2019 (copy of which we have submitted as attached), informed the President explicitly that, on June 24, 2019, at 10:00, (i.e. 5 days from the announcement) the Committee on Laws would review the request of the MPs for the impeachment of the President, asking the President of the Republic to inform the Committee on Legal Affairs, if according to Article 112, point 2, of the Rules of Procedure of the Assembly, he wanted to express himself in the Commission, or not, in order to guarantee his right to be heard in the Commission.
This fact is also explicitly cited in the Report dated 26.06.2019[11] (attached copy), of the Committee on Legal Affairs, Public Administration and Human Rights, in paragraphs 7, 8 and 9, of this Report.
As it turns out, the same Committee on Legal Affairs, with the same chair, in June 2019, understood very well the importance of respecting the procedure and the right to be heard, according to Article 112, point 2, of the Regulation of the Assembly.
While the same commission (with the same composition and Chair), on May 4, 2021, first sends a letter without a clear and meaningless object, and then on 5.5.2021, calls the President of the Republic, leaving him only a few hours, and repeatedly rejects his request to be heard, within a reasonable time, on 10 May 2021.
2. You alleged a serious violation of the procedure in the first stage. In the letters dated 5 and 6 May 2021, you also raised some allegations of lack of legitimacy (citation). Then:
- What other argument could the President present, which he did not present?
- What prevented him from presenting these arguments in the Commission of Inquiry, in the Plenary Session, and in the Constitutional Court?
Answer: The procedure followed is one of the most serious moments of procedural violations in the history of the Albanian Assembly. This situation charges the Assembly with responsibility, which in the function of the predetermined political objective, violated the law and severely damaged the image of the Institution which is the foundation of the Parliamentary Republic, shaking the trust of the citizens in their elected representatives, as well as the Assembly to be the model institution in the implementation of the Constitution and the laws of the country.
3. Does Erind Mërkuri's report contain conclusions? Is it considered evidence? Does the decision of the Assembly and the Investigative Report stand without this opinion?
Answer: Since this question was asked in the session by Mr. Mërkuri himself as a representative of the Assembly, and in open conflict of interest, this is another moment that further aggravates the entire procedural integrity of the steps taken and implemented by the Assembly through the Commission of Inquiry into the impeachment of the President of the Republic.
As we have clearly requested in the session, this case of misuse of parliamentary activity and the qualities that an independent expert should have, deserves a special position and reaction of the Constitutional Court.
4. In the OSCE/ODIHR reports, it is mentioned that the president campaigned (citation ...). What is your comment on this quote?
Answer: The OSCE/ODIHR reports, confirmed fourfold all major concerns and repeated by the President of the Republic, throughout the period preceding the April 25 campaign. The OSCE / ODIHR Reports briefly state that:
• The government carried out the most criminal and massive vote-buying ever seen.
• The government used its power to criminally misuse the personal data of hundreds of thousands of citizens, who are already in the hands of organized crime and traffickers, seriously undermining public and personal security of citizens.
• The government abused power and administration to put pressure on citizens and businesses, used tens of millions of Euros, and the entire administration was used against citizens.
• Tens of thousands of Albanian citizens, emigrants to Greece and Macedonia, were unconstitutionally denied by the government’s illegal decisions the right to vote.
• The government criminally captured the media, to deceive and misinform the citizens about the electoral goals of Rilindja.
• The government illegally employed thousands of people in the public administration, for electoral purposes only.
• The government squandered tens of millions of Euros of reconstruction to orient the vote.
• The government used criminal groups to pressure voters.
From the content, findings and recommendations of the OSCE/ODIHR in the three reports it produced for the monitoring of the elections of April 25, 2021, it is irrefutably proven that the long-standing concerns of the President of the Republic and made public on an ongoing basis, were right, as they came as a result of an objective and coherent assessment of the behavior of the ruling majority, which with its ongoing actions was showing that it would do, as it did, everything to distort the will of the voters, in order to influence the voter, creating political advantages in its favor in this electoral process.
The only "campaign" of the President of the Republic, was to protect the integrity of the electoral process, through the transparent platform "Denounce electoral crime", to encourage law enforcement institutions to act in time and to discourage instigators and perpetrators from committing electoral crimes.
If this is considered by the representatives of the Assembly as a campaign against the ruling party, it should be understood in line with the conclusion of the OSCE / ODHIR Report that the state and the party merged into one, violating the integrity of the electoral process.
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At the end of these answers to the Constitutional Court and the representatives of the Assembly, I must bring to the Court's attention an objective and consistent example of the role of the Head of State, especially in times of crisis, or of extreme tension of socio-political situation.
The example of the President of Romania, Mr. Ioannis, who in defense of the public interest, joined the protest of hundreds of thousands of Romanian citizens, with the motto "To prevent an institutional coup", as he called it because of the adoption of a law related to the conflict of interest, is without no discussion the practical concretization of the activity of the Head of State in unwavering support of the highest public interest.
It is also the right time to bring to the attention of the Constitutional Court, again from Romania, as a member of NATO, a member of the European Union and part of our common Balkans, how the Romanian Constitutional Court expressed itself in 2007, interpreting the role of the Head of State for a situation that in terms of its gravity, has no comparison with the crisis in which our country has been, and still is, for several years.
In the Advisory Opinion no. 1, dated 5 April 2007, published in the Official Gazette of Romania no. 258, dated 18.04.2007, the Constitutional Court of Romania, among others, stated that[12]:
"At the same time, according to Article 80 paragraph (1) of the Constitution, the President of Romania is the guarantor of the national independence, unity and territorial integrity of the country, and according to paragraph (2) of the same article, guarantees the proper functioning of public authorities and exercises the function of mediation between state powers, as well as between the state and society.
Constitutional prerogatives as well as the democratic legitimacy given by his election […] require the President of Romania to play an active role, his presence in political life cannot be reduced to a symbolic and protocol exercise.
The functions of guarantee and vigilance provided in Article 80 paragraph (1) of the Constitution mean by definition the careful monitoring of the existence and functioning of the state, the vigilant supervision of the conduct of public life actors - public authorities, organizations legitimized by the Constitution, civil society and respect for the principles and norms set by the Constitution, protection of the values provided in the Basic Law. Neither the clock nor the guarantee function is performed passively, with contemplation, but with lively and concrete activity.
In view of these considerations, the Court finds that the President of Romania, on the basis of his prerogatives and legitimacy, may express political opinions and stances, make observations and criticisms concerning the functioning of public authorities and their exponents, and propose reforms or measures which it deems desirable in the national interest.
However, the opinions, observations, preferences or requests of the President are not decision-making and do not produce legal effects, and public authorities remain solely responsible for appropriating or ignoring them. In any case, the exercise by the President of an active role in the political and social life of the country cannot be considered as conduct contrary to the Constitution.
Referring to the above facts, which are attributed to the President of Romania, it cannot be claimed that he has violated the provisions on the independence of the judiciary by criticizing magistrates, including judges of the Constitutional Court. […] ”
This opinion of the Romanian Constitutional Court is a clear example of what a President represents, how he should play his role, what are the spaces where he extends his activity, and clearly has a wide analogy with the Albanian constitutional context, and makes clear to anyone that the actions and attitudes of the President of the Republic, Mr. Ilir Meta, in every situation and at every moment, have been in accordance and in full respect with the Constitution of the country and the relevant laws, and in the service of the highest public interest.
Tirana, on February 7, 2022.
PRESIDENT OF THE REPUBLIC
ILIR META
[1] Consult the summary parliamentary minutes published for the session of May 7, 2021 https://www.parlament.al/Document?tipId=1&dokumentId=6034 [2] For more, please refer to the following link: https://president.al/platforma-e-presidentit-te-republikes-per-integrimin-europian-te-shqiperise/ [3] Refers to the photo of President Meta. [4] https://fb.watch/65XxoVauyF/ https://president.al/deklarate-per-mediat-e-presidentit-te-republikes-sh-t-z-ilir-meta-6/ https://www.youtube.com/watch?v=5YVR-6PPvmg [5] He refers to President Meta again, in the photo shown on the screen. [6] Source of this quote, translated by us: https://legislatie.just.ro/Public/DetaliiDocument/81245 [7] https://www.cotidianul.ro/ce-vazut-iohannis-dupa-ce-urmarit-cu-foarte-mare-atentie-protestele/ [8] 1. The President of the Republic has no responsibility for the acts performed in the exercise of his duty. 2. The President of the Republic may be dismissed for a serious violation of the Constitution and for committing a serious crime. [9] https://www.cotidianul.ro/ce-vazut-iohannis-dupa-ce-urmarit-cu-foarte-mare-atentie-protestele/ [10] Source of this quote, translated by us: https://legislatie.just.ro/Public/DetaliiDocument/81245 [11] For more, please refer to the content of the Report on the official website of the Assembly, at the link: https://www.parlament.al/Projekte/PPPDetails/532 [12] Source of this quote, translated by us: https://legislatie.just.ro/Public/DetaliiDocument/81245
