IPLS SERVICES: CONSTITUTIONAL COURT OBSERVER

Decision No 53

Tirana, 28 September 1999
Applicant: Tirana City Hall, represented by Mr. Albert Brojka, Tirana city Mayor.
Interested parties:
  1. The Assembly of the Republic of Albania, represented by Mr. Viktor Gumi, legal advisor to Chairman of the Assembly
  2. Council of Ministers represented by Mr. Ilir Panda, Minister of Justice.
Subject case:

Abrogation on unconstitutional grounds of Article 39 of Law No 7572, dated 10 June 1992 "On Organization and Operation of Local Government", as well as Decision of Council of Ministers No 234, dated 22 May 1999 "On Some Amendments to the Decision of Council of Ministers No 301, dated 14 June 1993 "On Measures for Implementation of Law No 7698, dated 15 April 1993 "On Restitution and Compensation of Property to former-Owners." (Articles 13, 109, 131 point "c" and 134 of the Constitution of the Republic of Albania)

The Applicant has presented the following reasons for abrogation of Article 39 of the Law and Decision on unconstitutional grounds:

  • Article 39 of Law No 7575, dated 10 June 1992, which provides for the appointment and dismissal of City Hall Council Secretary by the Council of Ministers runs against the constitutional principle of decentralization of power and autonomy of local government;
  • The right of Secretary of the City Hall to propose composition of the Commission for Restitution and Compensation of Property constitutes a serious violation of the equality of members within local government organ, and Secretary gains privileged position in comparison with Mayor which is elected by people;
  • In the light of new changes, the power for appointment of Commission for the Restitution and Compensation of Property is denied to the Council of City Hall which is an elected body and given to State Committee for Restitution and Compensation of Property to the former-Owners which is a central organ public administration.
Constitutional Court

After having heard claims of the applicant, representatives of interested parties and discussed the case substantially,

Observed

According to Article 39 of Law No 7572, dated 10 June 1992 "On Organization and Operation of Local Government" Secretary of the Council of City Hall and Council of Communes is appointed and dismissed by the Council of Ministers, while Article 40 defines Secretary’s main competencies. These competencies deal with preparation for the meeting of the Council, communication of decisions taken in the meeting, information of public opinion for rules with general interest, supervises activity of Secretary’s office, etc. Having a technical and administrative nature these competencies do not prevent organs of local government to fulfill their duties in conformity with principles of the Constitution.

Adherence to constitutional principles of local autonomy and decentralization is defined first by competencies and activity of organs. Since the competencies of the Secretary of the City Hall Council provided in Law No 7572, dated 10 June 1992 are not unconstitutional, the application cannot be admitted. Other competencies given to him by special acts, which have come into force, are not subject of application, therefore not subject of examination by this Court.

Concerning other claim presented in the application regarding unconstitutionality of the Decision of Council of Ministers No 234, dated 22 May 1999 "On Some Amendments to the Decision of Council of Ministers No 301, dated 14 June 1993 "On Measures for Implementation of Law No 7698, dated 15 April 1993 "On Restitution and Compensation of Property to former-Owners" we observe this decision is not yet published in the Official Journal, so in the understanding of Article 117 of the Constitution has not legal effect. Thus, in the understanding of this provision and further to view the Court has taken in the previous cases on this issue in its Decision No 47, dated 7 July 1999, the Constitutional Court decides the case in question without a subject.

Therefore

The Constitutional Court of the Republic of Albania, in pursuance of Article 131/a, c and 134/e of the Constitution of the Republic of Albania, and Article 41 of Law No 8373, dated 15 July 1998 ""On Organization and Operation of Constitutional Court of the Republic of Albania",

Held

Refusal of application.

This Decision is final, cannot be appealed and comes into force with its publication in the Official Journal.

Dissenting Opinion

Under Article 13 of the Constitution local government, where city hall and commune is included, is based on the principle of decentralization of power and exercised according to the principle of local autonomy. Amongst other features, principle of decentralization and autonomy consist on a limited freedom from central government, which is not absolute, because it must function within constitutional and legal framework of the State. However, there are areas falling into their competencies enabling them to act to according to their will, without central government interfering in their activity. In order to fulfill administrative function, city hall and commune, likewise other local divisions have their administrative apparatus, which is not depended on central government.

Under Article 34 of Law 7572, dated 10 June 1992 "On Organization and Operation of Local Government" appointment and dismissal of administration personnel falls into competencies of the mayor of the city hall and chairman of the commune. Secretary of the city hall council and commune council is part of administration personnel. Main competencies of the secretary are those mentioned in Article 40 of the law. Under such circumstances his appointment and dismissal by the Council of Ministers and not by the mayor or chairman of the commune, constitutes entirely a violation of the principle of local autonomy provided by Article 13 of the Constitution. Provision in Article 40 that secretary has these main competencies, means that main competencies are those mentioned in Article 40.

It is true that Article 40 provides that secretary may perform other duties prescribed by law or assigned to him by the council or the chairman of the commune or mayor of city hall, but whatever duties are, they are not main competencies because they are not mentioned in the law and are not such as to recognize to the secretary special rights to be appointed and dismissed by the Council of Ministers.

Decision of this Court No 2, dated 25 January 1999 finds unconstitutional last paragraph of Articles 14 and Article 23, and in paragraphs 1 and 2 of Law No 8405, dated 17 September 1998 "On Urban Planning" states: "Organs of local government in pursuance of Law No 7572, dated 10 June 1992 "On Organization and Operation of Local Government" appoint and dismiss administration personnel of these organs and as such they must decide for the appointment and dismissal of responsible officer of urban planning division or director of urban planning division for Tirana".

Thus, it is already admitted that organs of local government must decide for appointment or dismissal of administration personnel, therefore there is not any special reason that secretary of the city hall or commune which administration personnel be not elected by the organs of local government.

Thus, application for abrogation of Article 39 as unconstitutional is well grounded, therefore it must have been admitted.


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