Veliaj Has the Mandate and the Pen. Can He Use Either?

A mayor in pretrial detention keeps the mandate the voters gave him. The signature is another matter, and the law that governs it does not recognize a municipality run from a cell.

Erion Veliaj, mayor of Tirana, has been held in pretrial detention at the Durrës facility for nineteen months in a SPAK case. The Constitutional Court annulled the municipal council’s attempt to remove him. In the last days of August he withdrew the delegation of his powers to deputy mayor Anuela Ristani, leaving payrolls and social-assistance decisions unsigned, and on 1 September the municipality announced that he had signed the first acts from detention: staff payrolls, additional funding for nurseries, and the acceptance of three resignations, including Ristani’s. The opposition has demanded an urgent council session to establish who runs the city. Ylli Manjani, a former Justice Minister, argues that the mandate and the signature are governed by different rules.

By Ylli Manjani, former Minister of Justice of Albania

There is a debate running for days now around a question that looks technical at first sight but in fact touches the very meaning of the rule of law. Can a mayor who is in pretrial detention continue to sign the letters and official acts of the institution he leads?

A clear-cut answer is hard to give, but I will try to reason from the written laws and from the cold logic that follows from those laws and from the decisions of the courts.

It is undoubtedly paradoxical to find that the mayor under arrest keeps his mandate but not quite his signature.

This is not wordplay. It is the distinction the law itself draws between the status of an elected official and the exercise of his powers when the criminal laws on pretrial detention are in operation.

A. The mandate of a local elected official is plainly not suspended by detention.

The Code of Criminal Procedure has been very careful to protect the democratic legitimacy of elected officials.

Article 242, which governs the security measure “suspension from the exercise of a public duty or service,” expressly excludes its application to persons elected under the electoral law. That means SPAK and the court cannot suspend a mayor’s mandate through a security measure.

For precisely this reason, and under the law on local government, Erion Veliaj remains, formally, mayor of Tirana. His mandate has neither ended nor been suspended. Until a legal ground for the termination of the mandate exists, he remains the citizens’ elected choice.

Up to this point there is no dilemma. The Constitutional Court made this clear in its first decision, when it blocked Veliaj’s dismissal.

B. But logically, a prison cell is not an alternative office.

The problem begins the moment someone tries to equate the existence of the mandate with the normal exercise of the function.

Article 238 of the Code of Criminal Procedure provides that a person under arrest is placed in a pretrial detention institution and held at the disposal of the proceeding authority. He is deprived of freedom of movement and of the possibility of carrying on his normal activity.

A mayor is not a notary who signs papers wherever he happens to be. He is an administrative organ. His competence is exercised inside the institution, on the basis of administrative procedures, documentation, protocol, verification and legal responsibility.

So detention does not remove the mandate, but it makes its normal exercise practically and legally impossible.

C. A signature is not a pen.

Here a concept is being deliberately confused.

Many say: “What is the problem? Let them take the documents to the cell and he signs.”

The problem is that a mayor’s signature is not a private act. It is not a family authorization, not a civil contract, not a personal declaration. Detainees sign private documents all the time.

But official acts are not private documents.

The signature is the final element of an administrative act that produces legal consequences for citizens, businesses and the administration itself.

Before that signature is placed, certain procedures must have taken place: review, reports, verification, registration in the protocol, management of the file and institutional responsibility.

Can all of this be guaranteed inside a detention facility?

Logically, no.

Otherwise we would be accepting the absurd idea that the office of the mayor of Tirana can be temporarily transferred to a pretrial cell in Durrës.

D. The law provided for substitution, not government from the cell.

The law on local self-government does not leave the municipality without leadership.

When the mayor is objectively unable to exercise the function, the powers are exercised through the mechanism of substitution, by the deputy mayor or by the official the law designates.

So the law’s solution is not for documents to make the journey Municipality to Detention to Municipality.

The solution is institutional continuity.

In a serious state it is the institution that functions, not the physical location of the signature.

E. Then why is the mandate kept?

Because the Constitution protects the citizens’ vote.

A security measure cannot replace the decision of the electorate. A person is innocent until convicted by a final judgment.

That is why the law does not allow pretrial detention to become a mechanism for overturning a mandate won at the ballot box.

But the reverse is just as true: the presumption of innocence does not turn detention into a new way of exercising public power.

These are two principles that somehow have to coexist.

The Veliaj case has produced a paradox the legislator probably never contemplated.

On one side, SPAK asks to keep him in detention on the argument that procedural risks exist.

On the other, the idea is accepted that the same person continues to sign official acts, issue administrative orders and run the institution.

This creates an obvious contradiction.

If detention is so indispensable that it must isolate a person from public life to guarantee the criminal process, how can it be said that he exercises, without any hindrance, the most important administrative function of the largest municipality in the country?

Either one thesis falls, or the other.

F. This is a legal question, not a political one.

This debate has nothing to do with the name Erion Veliaj.

Today it is Veliaj. Tomorrow it could be any mayor, any member of parliament, any other elected official.

So the answer has to be the same for everyone.

A local elected official can keep the mandate even in pretrial detention. That is the constitutional guarantee of the vote.

But he or she cannot exercise the function from detention. Because public competence is not exercised by correspondence from a cell.

Veliaj may keep his mandate. But not quite his signature.

Because the mandate was given to him by the citizens. The signature is permitted to him only by the law, and the law recognizes no administration of a municipality from pretrial detention.

In conclusion, a logical vacuum has visibly opened up between the laws governing local elected officials and the criminal laws. The courts have not been able to close it. Perhaps it falls to Parliament to clarify.