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The Constitutional Court unblocks the impasse it itself created!

2025-08-05 10:16:45Pikëpamje SHKRUAR NGA NIAZI JAHO
The Constitutional Court unblocks the impasse it itself created!
Constitutional

A little history:

A few days ago, I became aware of decision no. 35, dated 27.05.2025, of the Constitutional Court.

According to this decision, it turns out that one tenth of the deputies had presented a motion to the Assembly in which it was alleged that deputy VS had carried out profitable activities that stemmed from state or local government assets.

The motion was based on Article 70, paragraphs 3 and 4 of the Constitution.

The Assembly had decided to reject this motion, while no less than one tenth of the Assembly's deputies had addressed the Constitutional Court with a request to declare the Assembly's decision no. 5, dated 30.01.2025, incompatible with the Constitution and its obligation to send the rejected motion to the court.

The Constitutional Court, in its decision no. 35, dated 27.05.2025, which we mentioned above, stated that: “in any case, one tenth of the deputies have the right to request the Assembly by motion to send to court the issue of the deputy’s incompatibility in the exercise of the mandate and in the event of the rejection of such a motion, the right of no less than one fifth of the deputies to directly initiate the constitutional trial for the substantive examination of the issue of incompatibility and the declaration of the end of the deputy’s mandate is activated.” (See Par. 28)

In previous cases when the motion of one-tenth of the deputies was rejected by the Assembly and it was decided not to send the case to court (as was the case of deputy O.XH), the court's position was completely different. In order for the issue to be clear to the reader, I consider it necessary to refer to the decision of the Constitutional Court, no. 55, dated 10.07.2024, which states:

a) When the Assembly is set in motion by a motion of the President of the Assembly or one-tenth of its members, it must be decided to refer the matter to the Constitutional Court, which is the only body that has the competence to examine the merits of the matter…

b) In cases where the Assembly is put into motion according to point 4 of Article 70 of the Constitution, “The Assembly cannot put into question the notion presented and cannot subject it to parliamentary debate…The Assembly, in these cases, cannot enter into the essence of the issue, that is, the assessment of whether the concrete actions allegedly carried out by the deputy are incompatible with his mandate.” (Paragraph 39 of the decision)

c) Regarding the failure to refer the case to the Constitutional Court, the decision states that: “The Assembly must necessarily implement its decisions, specifically what is sanctioned in Article 132 of the Constitution, which states that “the decisions of the Constitutional Court are final and binding for implementation.” (Paragraph 44 of the decision)

d) The Court considers that “the constitutional principle of the free mandate of the deputy cannot be understood as absolute freedom…The Court considers that the principle of the free mandate (non-binding), although applicable in parliamentary procedures when deputies are called to vote, does not mean that the freedom to vote of deputies is absolute. On the contrary, this freedom in his voting is subject to restrictions.” (Paragraph 58 of the decision)

I expressed my critical opinion against the above decision in an article published in the newspaper "Dita", dated January 16, 2025, titled: "The Constitutional Court itself created the impasse."

Decision No. 35, dated 27.05.2025 of the court, which has profoundly changed its previous positions, thus unblocking the impasse that it itself has created, (in fact, although it does not express it) acknowledges that:

a) The position of the Assembly was correct, i.e. in accordance with the Constitution. It did not violate any article of the Constitution when it rejected the motion and, consequently, was not obliged to refer the matter to the Constitutional Court.

b) Article 132 of the Constitution could not be applied in such a case, because otherwise the majority vote and the autonomy of the legislative body would not be respected.

c) The expressions used in the court's decision (regarding the non-implementation of Article 132 of the Constitution) that the Assembly has violated "the entire structure of rights and obligations provided for in the Constitution, which would constitute a dangerous precedent..." (Paragraph 58 of the Court's decision, No. 35, dated 10.07.2024) were unfair, incorrect, unjustified and grave.

After the above decision, the court would not ask the Assembly to repeal the decision to reject the motion, nor would it mention the obligation under Article 132 of the Constitution, because the Assembly's decision would be legitimate and would not constitute, as the court expressed in the above decision of 2024, "a dangerous precedent."

Returning to the decision of the Constitutional Court that legitimizes one-fifth of the deputies to initiate the court in cases where the Assembly rejects the motions of one-tenth of the deputies, it is necessary to address the following issues:

First: Has the court changed its previous practice?

Second: If so, has she presented the relevant reasons and arguments for this change?

Third: Does this changed practice constitute a new constitutional norm?

In addressing the above issues, we find it necessary to express the following opinions: The Court has changed its practice, but without justifying the necessity of this change. In fact, the practice of the court may change in rare cases, under special conditions and circumstances and especially in the application of standards (see the decision of the Court of Appeal, No. 30, dated 17.06.2010).

We also think that changing the practice that legitimizes one-fifth of the deputies in cases where the Assembly rejects motions presented by one-tenth of the deputies, creates a new norm that, as is known, is an attribute of the legislature.

This conclusion was also reached by a minority of court members who stated that: " by legitimizing the subject of no less than one-fifth of the deputies, the court has exceeded the Constitution by creating a new constitutional norm " (decision no. 35, dated 27.05.2025, paragraph 24)

In conclusion, we consider it necessary to emphasize that the court (including the case of deputy VS) in view of Article 70, points 3 and 4 of the Constitution, has not previously legitimized its activation by one-fifth of the deputies, with the reasoning that Article 70 of the Constitution is a specific provision.


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