Albanian High Court initiates application process for Constitutional Court vacancy

The High Court of Albania announced today the start of the application process for a vacancy on the Constitutional Court. The move is based on the court’s interpretation that the mandate of the current Constitutional Court Chair, Holta Zaçaj, ends in March 2025.

Why is this important: The announcement adds to the ongoing debate surrounding the tenure of both actual Constitutional Court member Holta Zaçaj and former member Elsa Toska, who resigned in September. Zaçaj, appointed by the High Court, and Toska, nominated by the Albanian Parliament, are at the center of a constitutional dilemma. Zaçaj contends that her mandate extends until December 2025, whereas the High Court maintains that it ends on March 10, 2025, as per constitutional provisions ensuring the court’s renewal every three years.

Zaçaj seeks Venice Commission opinion: In light of the dispute, Zaçaj has reached out to the Venice Commission for an amicus curiae opinion on the constitutional interpretation of the tenure of Constitutional Court judges. She publicly shared four specific questions posed to the Venice Commission, including:

·         What is the end date of the mandate for judges whose tenure is defined only by the final year, as stipulated in transitional constitutional provisions.

·         Whether the duration of a successor judge’s mandate can be tied to the tenure of their predecessor.

·         If full nine-year mandates can be limited to ensure regular renewal of one-third of the court every three years.

·         What are the implications of delayed appointments on the constitutional duration of judges’ terms.

Zaçaj argues that these clarifications are crucial for consistent interpretation and application of constitutional provisions regarding judicial mandates.

High Court stance: In its announcement, the High Court reaffirmed that Zaçaj’s term ends on March 10, 2025, based on her appointment in January 2023 to replace Vitore Tusha. Tusha’s mandate ended on March 10, 2017, but she remained in office due to delays in filling Constitutional Court vacancies, caused by vetting-related disqualifications and institutional deadlock.

The High Court noted that Zaçaj’s appointment followed transitional provisions in the Constitution aimed at ensuring the court’s regular renewal. These provisions limit mandates to align with the three-year renewal cycle, a practice endorsed by the Venice Commission. According to the court, Tusha’s mandate formally concluded in 2017, and the subsequent eight-year mandate started on the same date.

Background: The Constitutional Court faced significant challenges following Albania’s 2016 justice reform. Vetting processes disqualified the majority of its members, leaving the court unable to function until December 2020, when the minimum number of six judges was restored. Full functionality was achieved only in January 2023 with the appointment of all nine members, including Zaçaj as chair.

Zaçaj’s appointment was part of a broader framework designed to stabilize and renew the Constitutional Court, ensuring compliance with constitutional principles and international standards. The framework, which mandates a rotation of three judges every three years, has been key to rebuilding the court’s functionality and credibility.

What’s next: The Venice Commission’s opinion will be critical in resolving the dispute over Zaçaj’s mandate and ensuring alignment with constitutional norms. Meanwhile, the High Court continues its preparations for filling the anticipated vacancy, aiming to maintain the regular renewal cycle of the Constitutional Court and safeguard its operational continuity.