The Venice Commission published the final opinion on the appointments of judges in the Constitutional Court, noting that the President of the Republic Ilir Meta was totally right regarding the head of JAC, Ardian Dvorani.
Even what President Meta and the Ombudsman in Albania have ascertained about the lack of transparency on the part of the Justice Appointments Council, chaired by Dvorani, is confirmed by the Venice Commission.
In the final report on the election of members of the Constitutional Court in Albania, Venice Commission states that the chair of JAC was the main cause of the clash between the Assembly and the President for the list of candidates for the Constitutional Court.
The Commission emphasizes that JAC must comply with the strict deadlines during the appointment process, and sent the two lists to the President and the Assembly within 6 days. Citing Dvorani’s statement on the matter, the Commission notes that his explanation for the preparation of the complete lists took longer and does not seem credible.
90. In addition, the JAC did not work in a transparent manner. Transparency is crucial to create public trust in the appointment procedure, hence in the Constitutional Court. Yet, the JAC disregarded the constitutionally mandatory presence of the People's Advocate as an observer in the selection by lot, as well as in the meetings and operations of the JAC (Articles 149/d (3) and 179 (11) of the Constitution). Instead, pursuant to Rule 41 of JAC Decision no. 4 of 11.03.2019 on the Procedure for the Verification of Candidates for the Vacant Positions in the Constitutional Court and for High Justice Inspector, "[t]he discussions on the issue as well as the voting of the decision shall be made only in the presence of the members of the Council."13 Rule 39 of the same JC decision gives the People's Advocate only the possibility to give opinions and evaluations regarding the mode of the procedure followed for the verification of the candidate", that means not on the merits of the ranking. It seems that the JAC argued that the People's Advocate might make public statements which could violate the secrecy of the JAC's proceedings. This seems not justified as the People's Advocate would also be bound by the secrecy as concerns individual cases; the People's Advocate could instead make public comments on the functioning of the JAC in general. As the discussions are a central part of the operations" of the JAC, it would seem that Rule 41 is contrary to the Constitution, the related legal provisions and the aim of ensuring public trust in the procedure conducted by the JAC. The Venice Commission recommends that the JAC changes this Rule for the upcoming candidates' verification and selection procedures.
91. In addition, Article 226(2)(d) of Law no. 115/2016 on governance institutions of the justice system provides that the Chairperson of the Council shall ensure audio recordings of the meetings of the Council and that summaries of the minutes of the meetings of the Council are kept and published on the website of the High Court. However, it seems that the summaries of the meetings were not published in time. This is particularly regrettable because the People's Advocate was excluded from the discussions pursuant to Rule 41. The Venice Commission recommends that the summaries of the minutes of the meetings of the JAC in 2020 be published in due time.
92. The most relevant issue caused by the decisions of the JAC in 2019 in relation to the appointments to the Constitutional Court concerns the timing of the transmission of the lists of ranked candidates to the President and to the Assembly. The JAC formed four lists of candidates (two for the President and two for the Assembly) on 29.09.2019; it subsequently sent two lists to the President on 08.10.2019 and two lists to the Assembly on 14.10.2019. This caused a major procedural incident. In reply to the question by the delegation of the Venice Commission, why he sent the lists to the Assembly six days later than those sent to the President, the Chair of the JAC replied that the preparation of the full files that were sent together with the lists took longer. This modus operandi was not discussed in JAC. The Venice Commission is not in a position to examine whether the explanation given is plausible. In any case, it should have been clear that the date of sending out the lists would have important consequences because of the potential application of the appointment by default on the basis of the 30-days rule. Normally, according to Arts. 7/a to 7/c of the Law on the Constitutional Court, the JAC has to respect strict deadlines in the appointment process. However, since the JAC did not function in 2018, the initial deadlines had been missed.