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Doc. 7969
22 December 1997
Conflict between the Government and the Constitutional Court in Albania
Motion for a resolution
presented by Mr Pollo and others
This motion has not been discussed in the Assembly and commits only the members who have signed it |
The Assembly recalls that Albania upon accession to the Council of Europe expressed its willingness to fulfil the obligations and commitments set out in paragraphs 13, 16 and 17 of Opinion No. 189 (1995).
The Assembly also recalls that in September 1997, in Resolution 1133, paragraph 6e, it called upon the Albanian government to respect the independence of the judiciary.
On 13 November 1997 the Constitutional Court ruled to abolish article 7 of law 8227 (on transparency) considering that the powers given to the government-appointed administration sent to run a company suspected of being a pyramid-scheme were incompatible with the constitutional guarantees on the inviolability of private property. According to article 7, the administrators had powers equal to the owners including the selling of the whole company.
The Parliament reacted by adopting two days later in a blitz procedure (in only two days, out of a minimum of three days as foreseen in the Rules of Procedure) two constitutional amendments. The first constitutional amendment gave the state wide powers to interfere with private property (on this basis article 7 was readopted). The second constitutional amendment was a pure act of retribution against the Constitutional Court. It specified the replacement procedure (rotation) of the Constitutional Court judges, gave it retroactive force, thus declaring previous replacement illegal and ordered that new replacement must occur within 30 days (deadline 20 December 1997). The retroactive character of a constitutional change and a content similar to an administrative order are unprecedented in the European and western constitutional tradition. The explanatory memorandum of that amendment specified that the Constitutional Court "has continuously violated the Constitution" and the Socialist parliamentary group intended by this amendment "to put an end to this situation". The Constitutional Court convened and found that article 2 of the 2nd amendment had overruled a Constitutional Court decision, something the parliament has no constitutional authority to do and ruled that it was invalid.
The first and especially the second ruling of the Constitutional Court ignited a series of infuriated attacks by the Government. Minister of Justice, Thimio Kondi, called the Constitutional court judges "incompetent, mediocre, corrupt and politically motivated". Minister of State, Arben Imami, called the judges "irresponsible and unprofessional". The Speaker of Parliament, Skender Gjinushi, called the judges "spies, serving foreign hostile interests". Gjinushi insisted that "if the Constitutional Court does not abide by amendment 2 by 20 December it will be dissolved".
Five Constitutional Court judges sued MM Gjinushi and Imami for insult and libel. 86-year old Constitutional Court judge, Manol Konomi, resigned in order to protest against amendment 2, and the government-sponsored slander campaign against the Constitutional Court. Mr Konomi, a very respected lawyer, was Minister of Justice in the early years of the communist-dominated government when he resigned, refusing to give judicial coverage to political murders committed against 36 "bourgeois" representatives. The Chairman of the Constitutional Court, Mr Gjata, has denounced the tacit support given by President Meidani and Prime Minister Nano to the actions and campaign against the Court.
The Committee on Legal Affairs and Human Rights of the Council of Europe Parliamentary Assembly in its meeting on 19 November 1997 expressed its grave concern at this development and asked the Venice Commission to give its legal opinion on the two constitutional amendments.
The Assembly, therefore:
condemns all forms of irresponsible political pressure addressed at the Constitutional Court;
expresses its solidarity with all those in Albania who remain committed to the principle of the independence of the judiciary;
warns that further arbitrary action against the Constitutional Court may have serious consequences for Albania including membership suspension;
considers that further technical assistance by the Council of Europe to build up the rule of law is vital and necessary.
Signed:1
Pollo, Albania, EPP/CD Akcali, Turkey, EDG Bartumeu Cassany, Andorra, SOC Bindig,Germany, SOC Columberg, Switzerland, EPP/CD Fogas, Slovakia, SOC Forni, France, SOC Hagard, Sweden, EDG Jansson, Finland, LDR Jurgens, Netherlands, SOC |
Kelam, Estonia, EPP/CD Kirkhill, United Kingdom, SOC Kostytsky, Ukraine, EPP/CD Kovacevic, Croatia, LDR McNamara, United Kingdom, SOC Meszsaros, hungary, LDR Simonsen, Norway, NR Staciokas, Lithuania, EDG Sungur, Turkey, EDG Wohlwend, Liechtenstein, EPP/CD |
1 SOC: Socialist Group
EPP/CD: Group of the European People's Party
EDG: European Democratic Group
LDR: Liberal, Democratic and Reformers' Group
GUE: Group of the Unified European Left
NR: not registered in a group