Albania

International standards

Well-designed codes of ethics and codes of conduct will help meet the growing expectations from the public, business leaders and civil society for greater transparency and integrity in government, and will places an onus on governments to ensure high ethical standards amongst public officials and elected representatives. As such, they can support the development of trust between the public and government institutions and officials. It is important that codes of conduct are in place for both civil servants and elected officials, and that training and guidance is provided to ensure a full understanding of the codes by all office-holders. Disciplinary measures and sanctions should be clearly stipulated and consistently applied in the event of noncompliance with the codes.

The following international conventions and standards relate to codes of ethics and professional conduct:

• The Committee of Ministers of the Council of Europe’s Recommendation on Codes of Conduct for Public Officials and the European Code of Conduct for all Persons Involved in Local and Regional Governance are the reference texts for local and regional authorities in Europe for ensuring political integrity.
• The Committee of Ministers of the Council of Europe’s Guidelines on Public Ethics consolidate in one single document Council of Europe core principles, standards and recommendations in this field, covering all categories of public officials, be they elected, appointed or employed. They are complemented by the Guide on Public Ethics: Practical steps to implementing public ethics in public organisations, a living document which provides case studies and examples from Council of Europe member states.
• The OECD Recommendation on Public Integrity shifts the focus from ad hoc integrity policies to a context-dependent, behavioural, risk-based approach with an emphasis on cultivating a culture of integrity across the whole of society.
• The Transparency International paper on Implementing Effective Ethics Standards in Government and the Civil Service provides practical mechanisms for institutionalising high standards of ethical integrity for elected officials and civil servants.

Domestic context

Ethics and integrity in public administration is a precondition for a democratic, transparent, and effective government, and greater responsiveness to citizens. In Albania, there is a lack of data as regards the implementation of codes of conduct at local level, and most norms affecting codes of conduct are regulated through codes of ethics, creating confusion between the two. On the other hand, many public institutions, like the Supreme State Audit Institution (ALSAI) and local governments, have adopted their own codes of conduct and codes of ethics. With regard to the latter, there is confusion about the hierarchy of the legislation regulating ethics and the codes of ethics themselves that often duplicate legal instruments and, therefore, are redundant or fail to address specific local concerns. Besides, the lack of data on the implementation of codes of ethics reflects the reality that their implementation has been limited in Albania.

Legislation

Norms of conduct of public officials are regulated by Law No. 9131 “On the Rules of Ethics in the Public Administration”. As provided in Article 1 of this law, “the purpose of this law is to set rules of conduct of employees of the public administration, according to the required standards, to help them achieve these standards and to make the public aware of the conduct that an employee of the public administration should have”.

In addition, Law No. 152/2013 “On the Civil Servant” serves as a basis for adopting more specific and detailed regulations on ethics by different parts of the public administration. Public institutions are obliged to establish a human resources department responsible for the management and career development of the public officials of the institution. Disciplinary measures and sanctions are stipulated for application in the event of noncompliance with the law.

The existing codes of ethics or codes of conduct and related provisions in the internal regulations of local authorities complement the above-stated legal provisions.  

Guidelines

Despite the lack of specific guidelines regarding codes of conduct, the ethics and conduct of public officials are regulated in different articles of the normative framework aiming to increase transparency, impartiality and non-discrimination in the actions and conduct of Albanian civil servants. The following instruments contain provisions on the conduct of public officials:

• Law No. 7961, 1 July 1995, “Labour Code of the Republic of Albania”, as amended;
• Law No. 9049, 10 April 2003, “On the Declaration and Audit of Assets, Financial Obligations of Elected Persons and Certain Public Officials”, as amended;
• Law No. 9367, 7 April 2005, “On the Prevention of Conflicts of Interest in the Exercise of Public Functions”, as amended;
• Law No. 9643, 20 November 2006, “On Public Procurement”, as amended;
• Law No. 9887, 10 March 2008, “On the Protection of Personal Data”, as amended;
• Law No. 90/2012, 27 September 2012, “On the Organisation and Functioning of Government Administration”;
• Law No. 152/2013, 30 May 2013, “On the Civil Servant”;
• Law No. 119/2014, 18 September 2014, “On the Right to Information”;
• Law No. 44/2015, 30 April 2015, on “The Code of Administrative Procedures of the Republic of Albania”
• Cross-cutting Public Administration Reform Strategy 2015-2020;
• Further information here.

Having a code of conduct is important not only to highlight, transmit and protect the internal values of the institution, but also to communicate these values to external stakeholders. In this regard, local authorities should adopt a code of conduct to foster accountability and ethical behaviour, and to function as a central guide for handling ethical dilemmas.

International standards

To ensure confidence in the mechanisms, local authorities should endeavour to consider and resolve each complaint promptly and comprehensively. Complaints mechanisms can be made more accessible by applying a one-stop-shop approach so that citizens do not need to search among different offices and websites.

If government takes a proactive approach to pre-empt the repeat of similar causes for complaint, complaints mechanisms can also help governments to identify new approaches to service delivery and to increase citizen participation. To this end, complaints mechanisms should be combined with periodic evaluations of service delivery, including the use of public opinion surveys, and exchange of experience and tools with other local authorities to encourage wider adoption of good practice and tried and tested tools.

There are no specific international standards for complaints mechanisms relating to public services. However, mechanisms and procedures for responding to complaints are incorporated into an international legal guarantee to the right to participate in the affairs of a local authority, and there are a number of helpful civil society guidelines and handbooks. See for example:

• The Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207) provides an international legal guarantee to this right, including the establishment of mechanisms and procedures for dealing with and responding to citizen complaints and suggestions.
• Transparency International’s Complaints Mechanisms: Reference Guide for Good Practice sets out guiding principles and good practices for establishing and implementing complaint mechanisms that provide safe channels for citizens to alert a public or private institution about any corruption risks or incidences.
• The Danish Refugee Council’s Complaints Mechanism Handbook describes how to set up and manage a complaints mechanism.
• World Vision’s Overview of NGO-Community Complaints Mechanisms, with an overview of mechanisms and tools used by development agencies to receive complaints.

Domestic context

Complaints mechanisms at the local level are important in that they provide a channel for addressing citizens’ concerns and problems. Citizens can submit complaints through one-stop shops at local government units and can seek redress of their concerns and problems through sending letters of complaint or calling a dedicated phone number created for this purpose. Local government units have internal regulations that stipulate the procedures for addressing and resolving complaints and they should provide complaint-form templates to facilitate citizens’ feedback and subsequent documentation of their complaints and the responses provided. In addition, there are online tools in place to file complaints, such as Stop Corruption (www.stopkorrupsionit.al), Ask the State (www.pyetshtetin.al) and Improve Your City (www.permiresoqytetin.al), among others. Nevertheless, there is a lack of data on citizens’ concerns towards public institutions on most of those online platforms, especially towards local government units. This is compounded by a general lack of citizens’ trust in public institutions at the local level, especially in the fight against corruption.

Legislation

Article 19 of Law No. 139/2015 “On Local Self-Government” stipulates that any citizen or group representing communities has the right to address requests, complaints, or objections to local government bodies on matters pertaining to functions and competences within the jurisdiction of the local government unit.  Local government bodies are obliged to consider claims, appeals or remarks, and to reply within the deadlines set by the law. Law No. 44/2015 “On the Code of Administrative Procedures” regulates the procedure for administrative appeal in cases when the complaint is not taken into consideration. The one-stop-shop principle provided in this Code is a good legal basis which contributes to the effectiveness of complaints mechanisms.

The Office of the Commissioner for the Right to Information and Protection of Personal Data also assesses complaints in cases when the mechanism of the right to information is applied.

Other specific procedural laws also provide the legal basis for addressing requests, complaints or objections submitted to local government bodies on specific matters. 

Guidelines

In addition to the internal procedures of local government units, the Office of the Commissioner for the Right to Information and Protection of Personal Data has created a procedure for complaints and has designed a standardised letter for complaints for those cases where the right to information is not yet observed and promoted by local government units. To improve their efficiency at local level, public authorities should develop and implement a clear process of complaints procedures whereby each citizen’s problem and concern is considered and resolved promptly and comprehensively.

International standards

Redress mechanisms serve as a frontline service to be used by citizens to effectively resolve complaints and/or grievances. Furthermore, business organisations can use GRMs to mitigate risks to their business operations and GRMs can become a prompt and effective mechanism for dispute settlement short of legal action.

Effective redress mechanisms can serve to identify patterns of corruption and malpractice, and to forge corruption prevention policies. To ensure greater access, it is important to raise public awareness about GRMs and to provide free advice to citizens on the formulation of grievance claims and how to proceed when seeking redress.

Standards for grievance redress mechanisms are mostly set by international organisations such as the World Bank, Asian Development Bank (ADB), Organisation for Economic Co-operation and Development (OECD), United Nations Development Program (UNDP) and European Commission. These standards are mostly connected with setting the legal framework for the protection of citizens’ rights. These standards are presented in the following guidelines:

 

Domestic context

According to “Corruption in Albania, Perception and Experience”, a survey by the Institute for Development Research and Alternatives (IDRA) in 2016, the public perceives the level of responsiveness of local governments in addressing citizens’ requests regarding local projects and developmental issues as “good”. The survey data indicated that respondents consider the redress of citizens’ complaints as “average”, but secondary data reveals comparatively better satisfaction rates vis-a-vis the resolution of complaints.

Although some municipalities report a generally good level of resolution of complaints, a substantial number of municipalities publish neither statistics on the annual numbers of complaints filed by citizens and businesses nor the number of resolved complaints. It is evident that some municipalities have neither an integrated system for complaints management nor an effective system for tracking filed complaints.

Legislation

Pursuant to Law 119/2014, all the municipalities have established a structure to handle the filed complaints, known as the Complaints Office, Public Information Office, Appeal Office or Public Relations Office, where citizens can raise issues of concern and file complaints or requests. The workflow, timeframes and other details related to the processing of complaints and requests are specified in the legislation. Other mechanisms that citizens can use are citizens’ open days organised by the municipalities, dedicated windows in the municipality official website, and municipal phone numbers. Several small municipalities, such as Memaliaj, Këlcyrë, and Libohovë, have reported that they lack standard redress mechanisms or complaints are filed by citizens either as handwritten letters or through informal communication, which makes the process difficult to manage and complicates the authorities’ ability to provide formal responses.

Other procedural laws also provide the legal basis for redress of complaints submitted to local government bodies on specific matters. These provisions provide legal deadlines applicable to the available redress mechanism.  

The existence of the independent institution of People’s Ombudsman established by Law no. 8454 ”On People’s Ombudsman”, as amended, represents an additional guarantee for an effective redress mechanism.

Guidelines

The accountability of municipal departments is enhanced by citizen complaints management and redress mechanisms, and municipalities declare that they have mechanisms for lodging complaints, but the response mechanisms are not effective.

The recommendations of the Supreme State Audit Institution (ALSAI) and of internal audit bodies serve as an important control mechanism for almost all Local Governance Units (LGUs), but more emphasis should be placed on increasing the role of municipal councils, which need to be periodically informed about the progress made and the problems encountered during the implementation of their decisions. There is also a need to open the municipal council meetings up to the public and provide space for citizens and stakeholder groups to raise complaints or grievances in a concerted way with a view to securing prompt action, such as redress or policy adjustments to prevent repeat of the harm done.

International standards

Most whistle-blowers raise their concerns internally or with regulatory or law enforcement authorities rather than blowing the whistle in public. The protection of whistle-blowers, and an organisational culture that prioritises transparency and dialogue, serves to promote accountability, builds confidence in the integrity of government, and encourages the reporting of misconduct and corruption. Whistle-blower protection can motivate employees to report wrongdoing without fear of reprisals, and fosters transparency and trust within an organisation as well as outwards to citizens that ethics are upheld and misconduct detected and remedied.

The rights of whistle-blowers can be strengthened by stipulating clear processes and providing secure confidential channels for disclosure. Explicit remedies, including penalties, to redress reprisals against whistle-blowers should be introduced and consistently applied. Training of human resources staff in local government and government agencies needs to be complemented by awareness-raising among the public so that citizens and government employees alike understand the positive results from whistle-blowing in terms of sustained value for money, trust in public authorities, and quality of services.

The following international conventions and standards relate to the protection of whistle-blowers:

• Creating comprehensive and effective mechanisms to protect those who disseminate information in the public interest is a recommendation of both the United Nations and the Council of Europe, as well as the Organization for Economic Co-operation and Development (OECD).
• The Congress of the Council of Europe’s resolution and recommendation on The protection of whistle-blowers Challenges and opportunities for local and regional government call on ”local and regional authorities to establish and disseminate a whistleblowing policy, with appropriate internal and anonymous reporting channels and to ensure that independent designated institutions exist to oversee and process the disclosure of information.”
• The United Nations Convention against Corruption is the only legally binding universal anti-corruption instrument.
• It is supported by the Technical Guide to the Convention.
• The EU Directive on the Protection of Persons who Report Breaches of Union Law requires EU governments to meet minimum standards for establishing reporting channels and ensuring legal protection for whistle-blowers.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173) aims to co-ordinate criminalisation of corrupt practices and to improve international co-operation in the prosecution of offences.
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174) defines common international rules for effective remedies for persons affected by corruption.

Domestic context

In May 2014, the National Coordinator Against Corruption (NCAC) and the Ministry of Justice, with the assistance of the Dutch government through Utrecht University, began drafting the Law “On whistle-blowers and the protection of whistle-blowers”. This law serves to achieve a greater transparency of public and private institutions by creating a better environment for employees to step up and denounce corruption cases. The law defines corruption-related offences, delineates the competences of the internal mechanisms, and pinpoints which body should serve as the external reporting mechanism, and defines how the protection of whistle-blowers should be ensured. In addition, the law applies both to the public and private sector. It was adopted in Parliament on 2 June 2016. By Decree of the President of the Republic No.9647, the law entered into force on 8 July 2016. Its legal effects extend from 1 October 2016, with the exception of legal effects for internal whistleblowing for private subjects, which started on 1 July 2017. This was a commitment of the second and third Open Government Partnership (OGP) National Action Plans 2014-2016 and 2016-2018, and continues to be a commitment of the National Action Plan of 2020-2022.

Legislation

Based on the Criminal Code, the Law on Whistle-blowing and Whistle-blower Protection considers as reportable criminal offences of corruption all illegal actions or inactions, as per the criminal legislation in force, related to any and all forms of active and passive corruption, abuse of office or power, exercising illegal influence in the performance of duties or decision-making, misuse of state budget revenues, illegal profits, bribery or grafts, as well as any other acts similar to the above.

The law provides three elements of a comprehensive law on whistleblowing:

• Mechanisms for reporting on corrupt acts;

• Mechanisms for investigating reported whistleblowing; and

• Mechanisms for protecting whistle-blowers from retaliation.

The law applies to all people working in the public and private sector and includes some of the best international practices on whistle-blower protection, such as:

• Credible protection of confidentiality;

• Protection from harassment that aim to create an aggravated environment for the whistle-blower;

• Prohibition of contractual agreements based on which the whistle-blower’s rights and protection are ruled out or limited;

• The option of transfer in case the whistle-blower chooses to not return to the same workplace and to relocate to another place to protect themselves from hostile reactions; and

• Charging with personal responsibility for retaliation against the whistle-blower.

Although four years have passed since the adoption of the law, the situation in local government units regarding the adoption of bylaws presents some problems. None of the ten largest municipalities in the country complied within the legal deadline of six months from the effective date of the law, with the requirement for the approval of special internal regulations on the procedure of reviewing the administrative investigation of signalling of illegal conduct or wrongdoing and on the mechanisms of protection of confidentiality. By 2021, only seven municipalities, namely Korça, Durrës, Tirana, Gjirokastër, Lezhë, and Kukës, had fulfilled their legal obligation to approve the relevant regulations, although two years after the legal deadline. Three other municipalities (Shkodra, Dibra and Vlora) had not yet approved these regulations.

Guidelines

Although state institutions and other stakeholders have been mostly focused on the legal and institutional infrastructure for implementing the legal requirements, 2017 marked the first results of the implementation of the whistle-blower protection legislations. Namely, eight cases of reports in state institutions have been administered by HIDAACI in 2017, which shows marginal changes in government practice for civic participation in reporting wrongdoings in institutions that are subject to this law.

Despite the importance of this commitment in creating a formal framework to strengthen the fight against corruption and address other malpractices, its implementation has not yet resulted in observable changes for increased public access to information on reported cases or changed practices of public accountability.

International standards

Disclosure requirements can build citizens' trust in the transparency and integrity of local decision-making. They also assist public officials in having regularly updated information that prevents conflicts of interest arising among employees. Disclosure of financial assets also provides important information to help clarify if elected officials or civil servants do not have wealth that is disproportionate to their income, either protecting them from false accusations or serving as evidence in the case of suspected illicit enrichment.

Service delivery at the local government level, whether it be construction or tendering of waste-management services, is often subject to conflicts of interest due to the proximity of local entrepreneurs to government officials.  Confidence of the public and business that competition for local government tenders, for instance, is open to all without discrimination will be much greater if both elected officials and civil servants involved in design of the tenders and assessment of tender submissions have completed declarations of assets and interests (including of close family members).

It is important that the institutions responsible for gathering and monitoring declarations are provided with protection against political or other interference in their work, for instance through oversight by independent ethics committees. Likewise, local government officials should be provided with clear guidance on what to declare, and also on prevailing anti-corruption legislation. A well-implemented and regularly updated and monitored assets declaration system can complement the work of an effective prosecution service.

Disclosure is an important element in the conventions and standards against corruption listed elsewhere in this handbook. Of particular relevance are:

• The Committee of Ministers of the Council of Europe’s Recommendation on Codes of Conduct for Public Officials and the European Code of Conduct for all Persons Involved in Local and Regional Governance require private interests to be declared, made public and monitored.
• The Congress of the Council of Europe’s Resolution and Recommendation on Conflicts of interest at local and regional level call on local and regional authorities to promote the proactive disclosure of declarations of interest prior to public request and to ensure that disclosure policies are accompanied by appropriate measures for resolving conflicts of interest.
• The OECD’s Managing Conflict of Interest in Public Service: Guidelines and Country Experiences provides practical instruments for modernising conflict-of-interest policies.
• The OECD’s Asset Declarations for Public Officials: A Tool to Prevent Corruption identifies the key elements of asset declaration systems.
• Consultation, Participation & Disclosure of Information, International Bank for Reconstruction and Development / The World Bank.

Domestic context

The system of declaration of assets and financial obligations has been one of the most important legislative steps in Albania, reflecting the key requirements of the UN Convention against Corruption. However, the legislation on the conflict of interest and its implementation has been hampered by a number of factors and, therefore, its application has been partial and fragmented. One of the main obstacles is the gap between the broad scope of the law and the inadequate capabilities to ensure its effective implementation.

Legislation

The Law No. 9049 “On the Declaration and Audit of Assets, Financial Obligations of Elected Persons and Certain Public Officials” defines the rules for the declaration and audit of assets, the legitimacy of their sources, and the financial obligations for public officials, their relatives and persons close to them. As per Article 40, any violation of the obligations set forth in this Law may constitute a criminal offense or an administrative infraction, which is punished by fines based on the nature and degree of such violation.

The High Inspectorate of Declaration and Audit of Assets and Conflict of Interest (HIDAACI) administers the declaration of assets and financial obligations, and the audit of this declaration, according to the specifications outlined in the laws of declaration and conflict of interests. Moreover, based on the Law No. 9367 “On the Prevention of Conflict of Interest in the Exercise of Public Functions”, the HIDAACI, in the quality of central authority responsible for the implementation of the said Law, manages and improves the policies and mechanisms regarding the prevention of conflict of interest; offers technical assistance and advice on legal initiatives undertaken by public institutions for the prevention of conflict of interest; and monitors, audits and evaluates the exercise of this Law, among its main functions.

Guidelines

In support of local government anti-corruption efforts, the HIDAACI has developed and make available the Guide for Prevention of Conflicts of Interest in Local Governance together with its Explanatory Manual. The Guide gives information on:

• What is conflict of interest in local governance (definition, types of conflict of interest, who is involved in conflicts of interest);
• Prevention of conflict of interest;
• Limitations on local government officials for the prevention of conflicts of interest;
• Basic measures for treating and solving conflicts of interest;
• Sanctions;
• Illustrative examples of administering and solving cases of conflict of interest.

The Explanatory Manual for the Prevention of Conflicts of Interest in Local Governance aims at creating standards and unification of practices in administering and solving conflicts of interest at local level. In order to enhance disclosure and prevent conflict of interest, public authorities should act in accordance with the abovementioned Guide adopted by the HIDAACI and its Explanatory Manual.

International standards

Access to information supports accountability, oversight of government, and monitoring of corruption. It is also critical to informed citizen participation in decision-making, and is therefore fundamental for the effective functioning of democracies. Free access to information empowers civil society to monitor and scrutinise the actions of local authorities, it serves to prevent abuse of power by public officials, and provides data for informed public debate.

The proactive publication of the maximum amount of information in the most accessible formats serves to reduce the need for citizens and stakeholders to file individual requests for the release of information. As well as providing the maximum amount of information electronically, local authorities should prioritise the designation of Freedom of Information officers in their municipalities. Such officers should prepare and publish detailed recommendations for both citizens and local authorities, and provide clear guidance on the appeals process in the event that a request for information is not granted. It is also important to analyse information requests from citizens and stakeholder groups, in particular trends and duplication, so that the authorities can subsequently release such information on a proactive basis.

Access to information is a fundamental component of a number of the conventions and standards against corruption listed elsewhere in this handbook. It also underpins a number of key UN human rights documents. The following specifically relate to Access to Information:

• The Council of Europe’s Convention on Access to Official Documents (CETS No. 205) affirms an enforceable right to information.
• The Congress of the Council of Europe’s Resolution and Recommendation on Transparency and open government call upon local and regional authorities to increase the use of open data and records management by their administrations, and to publish these in comprehensive, accessible and reusable ways.
• The Aarhus Convention grants rights, including access to information, in decisions concerning the environment.
• The OECD Recommendation of the Council on Open Government identifies on-demand provision of information and proactive measures by the government to disseminate information as an initial level of citizen participation.

• Directive 2003/98/EC on the re-use of public sector information, nowadays called the Open Data Directive, previously known as the PSI Directive, encourages EU member states to make as much public sector information available for re-use as possible.

Domestic context

Access to information is an important mechanism to address transparency and accountability. Recent studies show that the average level of transparency with regard to access to information by local governments in Albania is 57% and approximately half of the 61 municipalities have adopted a transparency programme.

Legislation

Article 15 of the Law No. 139/2015 “On Local Self-Government” and Law No. 119/2014 “On the Right to Information” (FOIA) stipulate that local self-government bodies are obligated to make all their acts and information accessible to citizens. They should be published on their official website and displayed places for public announcements within the municipality. Each municipality shall adopt a transparency programme and appoint a co-ordinator for the right to information ensuring access for all to information.

Further, Article 18 of the Law No. 119/2014 “On the Right to Information” establishes administrative offenses for those who fail to comply with the provisions of this Law and imposes pecuniary sanctions according to the degree of violation. The Commissioner for the Right to Information and Protection of Personal Data has the right to supervise and monitor the implementation of the Law, to conduct administrative investigations and to propose disciplinary measures against offenders.

Furthermore, Law No. 44/2015 “On the Code of Administrative Procedures” regulates the procedure for access to public administration, right for administrative requests, petitions, etc., that may be addressed to public administration authorities. The principle of one-stop-shop provided in this Code is a good legal basis regarding access to information.

Guidelines

To increase access to information at local level, especially for the poorest communities, local authorities shall adopt and keep updated the Transparency Programme, which shall be created in accordance with the standard format approved by the Commissioner for the Right to Information and Protection of Personal Data. By means of the Transparency Programme, local authorities should take into consideration the highest interest of the community, especially to ensure maximum access to public information and to make publicly available as much information as possible in order to reduce the need for individual requests for information.

In addition, local authorities shall create, keep and make public a register, which keeps track of the requests for information and includes the information made available in response. The register should be created in accordance with Article 8 of the Law No. 119/2014 “On the Right to Information” and as set forth in the Transparency Programme and following the standard format of the register issued by the Commissioner for the Right to Information and Protection of Personal Data.

International standards

The promotion of open data through one-stop portals can further increase the scope for interoperability of datasets in terms of search and analysis. The results can improve the efficiency and reach of service delivery and reduce corruption. Awareness-raising among stakeholder groups, the media, businesses, and the wider public can result in effective co-operation among different stakeholders and improvements in solutions on transportation, recreation facilities, parking zones, health services, and much more.

It is important to adopt consistent open data standards for all open data to ensure maximum interoperability and searchability of data. Local authorities should also ensure that qualified staff manage the municipality's open data publication, and train relevant employees in open data standards.

Open data is a relatively new phenomenon without officially endorsed standards. However, a number of useful guidelines exist:

• The Congress of the Council of Europe’s Resolution and Recommendation on Open data for better public services explain its importance for improving local democracy.
• The Congress of the Council of Europe’s Resolution and Recommendation on Transparency and open government call upon local and regional authorities to increase the use of open data and records management by their administrations.
• The United Nations Guidelines on Open Government Data for Citizen Engagement introduce policy guidelines and good practice recommendations.
• This World Bank Toolkit starts from the basics, through to planning and implement, as well as avoiding common pitfalls.
• The Five Star Open Data Deployment Scheme provides five steps to fully opening data, explaining the costs and benefits of each.
• The International Open Data Charter sets out six principles for open, timely and interoperable government data.
• The OECD Recommendation of the Council on Open Government identifies on-demand provision of information and proactive measures by the government to disseminate information as an initial level of citizen participation.

Domestic context

As regards the state of open government data, Albania is ranked 37th in the 2015 Global Open Data Index.  With regard to the legal framework, laws, published acts and updated legislation are available online through the Albanian Official Publishing Centre. Nevertheless, 59% of surveyed civil society organisations do not fully agree that draft laws, policies and laws are available to the public, and 54% of them do not fully agree that draft laws, policies and laws are published in a timely manner.

Lack of awareness and understanding of open data persists both in government institutions and public officials and among citizens.  That said, there are initiatives in place to address this situation, such as the promotion of Open Government Partnership (OGP) values among local authorities, which was one of the partially achieved commitments of the OGP Second Open Government National Action Plan for Albania 2014 -2016.

Legislation

On 18 February 2015, the Council of Ministers approved the decision No. 147 “On the Approval of the Document on the Open Data Policy and the Establishment of the Open Data Portal”. The OGP Third Open Government National Action Plan for Albania 2016 – 2018 foresees four major actions and 17 commitments to promote transparency and open data. Increasing the access to information and the modernisation of the public service are the two main actions that should be addressed by local authorities. A platform for transparency and innovation named OpenAlb has been established to ensure the successful implementation of the OGP commitments in the country.

Guidelines

In order to increase openness and transparency at local level, local authorities in Albania should engage substantially in developing open data tools in accordance with the Technical Standards for Publication of Open Data, which will improve public access to information and lead to greater levels of citizen participation. Co-ordination between local authorities and civil society organisations, businesses, think tanks and other actors is important to raise awareness and understanding of open data as a transparency mechanism for strengthening local governance.

International standards

As procurement involves a large proportion of public expenditure and the transfer of public resources to the private sector or non-profit organisations, it is particularly vulnerable to corruption. Public authorities should deploy new technologies to increase transparency over public procurement and encourage new economic actors to enter bidding processes in the confidence that free and fair competition is applied. By posting all tenders on a common online platform, the occurrence of unpublished tenders and direct awards will be minimised. Use of open contracting and open bidding solutions also allows greater scrutiny of the process, further reducing the scope for corrupt practices. Open contracting systems include a preventive effect, because officials will refrain from manipulating the contracting process if they know that comprehensive disclosure of the bidding and contracting processes will be revealed.

Local authorities should ensure that there is a comprehensive system in place to monitor compliance with public procurement legislation, and that there is a responsive mechanism for reviewing appeals and complaints, including prompt and comprehensive replies. Authorities should also monitor contract implementation, in particular time extensions and cost increases, to ensure that the benefits in terms of value for money and quality of delivery are not compromised during contract implementation.

The following international conventions and standards relate to public procurement:

• The Congress of the Council of Europe’s Resolution and Recommendation on Making public procurement transparent at local and regional levels and the OECD Checklist for Enhancing Integrity in Public Procurement provide guidance for enhancing transparency and promoting integrity in procurement.
• The OECD Recommendation of the Council on Public Procurement promotes a strategic and holistic use of public procurement systems across all levels of government and state-owned enterprises. The online Public Procurement Toolbox provides policy tools, specific country examples as well as indicators to measure any public procurement system.
• The WTO Agreement on Government Procurement establishes rules requiring that open, fair and transparent conditions of competition be ensured in government procurement.
• The EU Directive on Public Procurement ensures the best value for money for public purchases and guarantees the respect of the EU’s principles of transparency and competition.
• The UNCITRAL Model Law on Public Procurement is a legal template available to governments seeking to introduce or reform public procurement legislation for their internal market.
• The European Bank for Reconstruction and Development (ERBD) Guide to Electronic Procurement Reform provides information on and assistance with designing and implementing domestic eProcurement reforms.

 

Domestic context

Albania is doing moderately well in public procurement. Some progress was made in the past year, in particular by amending the law on concessions and public-private partnerships (PPPs) to remove the bonus for unsolicited proposal in line with the European Commission’s recommendations and the adoption of the new law on defence and security procurement. Further efforts are needed to improve compliance with procedures and prevent corruption in the procurement cycle.

In the framework of measures towards increased transparency and the fight against corruption, from 2009 all public procurement procedures in Albania are performed through an electronic platform. Application of the e-procurement system has been a big challenge and a great achievement at the same time, for Albanian public procurement system, comparing to the paper-based model.

Based on data analysis, and assessments done after several years of experience with the e-procurement platform, improvements have been done in 2016, further aiming to increase transparency in the procurement system.

Improving and using the e-procurement system, as a tool to increase transparency and fight corruption, helped a lot in improving the performance of the procurement system in Albania. The most important figures to illustrate the impact is the reduction of the number of unpublished tenders direct awards which decreased from 30% of the total number of procurement procedures (which represents the average during the period 2009-2017) to 2.5% in 2019.

Legislation

The current core legislation in the field of public procurement consists of Law no. 9643, “On Public Procurement”, as amended, and the Decision of Council of Ministers no. 914/2014 “On the approval of public procurement rules”, as amended. These legal instruments are based on Directive 2004/18/EC on the coordination of procurement procedures for the award of public works contracts, public supply contracts and public service contracts” (Public Sector Directive), Directive 2004/17/EC coordinating the procurement procedures entities operating in the water, energy, transport and postal services sector”(Utilities Directive), which are already repealed by the new Directives of 2014, as well as in the Directive 2007/66/EC of the Parliament and European Council of 11 December 2007 amending Directives 89/665/EC and 92/13/EC as regards the increase of efficiency for public contract review procedures.

Also, the legislation in the field of public procurement contains two decisions of the Council of Ministers, which further regulate centralised procurement at governmental level, namely DCM no. 81/2018 “On the establishment, organisation and functioning of the Centralized Purchasing Agency” and DCM no. 82/2018 “On entrusting  Centralized Purchasing Agency with conducting public procurement procedures, on behalf and in the name of the Prime Minister’s Office, Ministries and Subordinate Institutions, for some Goods and Services”.

In the field of public procurement, Albanian legislation includes the concessions and PPPs, which are ruled by Law 125/2013 “On concessions and public-private partnership”, as amended, based on Directive 2014/23/EU on the award of concession contracts. This law is also supported by three bylaws, namely: DCM no. 280/2020 “On the approval of the regulation on the functioning manner of the selection committee of concession/PPP projects and criteria for evaluating contracting authorities’ requests for support with specialized expertise”, DCM no. 285/2020 “On the organisation and functioning of the Concession Treatment Agency (ATRAKO)”.

Legal provisions related to the Procurement Ombudsman represent an additional guarantee to citizens and private entities.  

Also, in the Cross-cutting Strategy for Decentralization and Local Government 2015-2020, one specific objective is the expansion of the reform of Internal Audit and Control, External Audit and Public Procurement to include local government. This aims at raising the level of Local Government Units to a achieve effective monitoring of the progress of reforms in the field of public financial management.

Guidelines

Albania has a central electronic public procurement portal administered by Public Procurement Agency, where tender and contract notices, and other important information and guidance are published. Use of the portal is mandatory, including for low-value procurement. Standard tendering documents for each type of procedure and contract are published on the PPA website, and the procurement forecast register is prepared and posted online.

By the end of 2019, the concessions registry contained information on 224 PPPs, five of which had been signed in 2019. Although required by law, value-for-money analysis is still not systematically carried out before approval of all PPPs. The Ministry of Finance and Economy made initial attempts to establish regular monitoring and reporting on PPPs. The technical skills and capacity to design and assess concessions and PPPs require further development.

The PPA has recently strengthened its monitoring role, and applies a monitoring system to assess procurement performance, procurement compliance and, since 2019, contract implementation, with information available for 1,006 contracts. The monitoring system is based on a variety of performance indicators. There is still a need for: (i) further support for contracting authorities; (ii) a strengthening of the e-procurement system; (iii) monitoring of contract implementation; and (iv) analysis of market trends in public procurement.

International standards

• The International Public Sector Accounting Standards focus on the accounting, auditing, and financial reporting needs of central, regional, and local governments, related governmental agencies, and the constituencies they serve.
• The International Standards of Supreme Audit Institutions website contains a complete collection of professional standards and best practice guidelines for public sector auditors.
• A number of the conventions and standards for combatting corruption include provisions and clauses relating to external audit.

Domestic context

The external audit coverage in Albania is limited. As a matter of example, in 2013, only an 8% of public entities (accounting for 40% of budget spending) were audited. The independent Supreme State Audit Institution publishes an annual report on the implementation of the budget. However, there is currently no certification or audit opinion on the individual financial statements of central or local budget institutions or on the consolidated fiscal statement.

Legislation

Article 13 of the Law No. 139/2015 “On Local Self-Government” stipulates that «local self-government units shall be subject to external audit by central government bodies with regard to the use of conditional and/or delegated funds provided by the State budget and/or funds of foreign aid, allocated to them according to the agreements signed by the central government». Moreover, as per Article 43 of the same Law, each local self-government unit is subject to external audit by the State Supreme Audit, and any audit report should be made available to the public. In exceptional circumstances, local executive bodies may be subject to audits conducted by specialised auditing companies.

The State Supreme Audit Institution (ALSAI) is the highest external audit institution in Albania. In accordance with its functions, rights and duties, apart from the audit role, the ALSAI can address criminal prosecution bodies when further tracking of audit findings is part of their competence and address the highest state bodies in case of noncompliance with its recommendations, as set forth in Article 15 of the Law No. 154/2014 “On the Organisation and Functioning of the State Supreme Audit Institution”.

Guidelines

In order to increase transparency on account standards and financial statements, public authorities should establish a sound internal budgetary control regime, produce publicly released annual reports and perform an external audit of those annual reports. Local authorities are advised to disclose and publish the external audit reports, and to adopt the Audit Reporting Guidelines published by ALSAI.

International standards

Clear rules and transparent reporting of political campaign financing and expenditures are essential to sustain trust in political candidates, political parties and government institutions. An imbalance in funding of political parties may result in an unfair advantage, handing undue influence to powerful narrow interests, running the risk that policies will be "captured" by narrow private interests, serving their goals over the public interest.

Mechanisms and rules on limits on party political financing, and on state financing of political campaigns, should be designed in a way that provides a level playing field for the different political candidates and parties competing in elections and serves to preserve the political forces' independence from financial supporters.

The following international conventions and standards relate to the financing of political parties:

 

Domestic context

In 2020, Albania addressed part of the OSCE recommendations for improving the organisation of elections. The passage of electoral reform, while partly positive, also included amendments that were added without the agreement of the opposition. Conclusions from the March European Union Council meeting stipulate that prior to the first intergovernmental conference opening negotiations between Albania and the European Union, “Albania should adopt electoral reform fully in accordance with OSCE/ODHIR recommendations, ensuring transparent financing of political parties and electoral campaigns”. Additionally, the negotiation framework, which had to be adopted by the Council, must reflect that Albania has implemented the agreed-upon electoral reform and that the Constitutional Court has issued a final decision on the lawfulness of the June 2019 local elections.

Legislation

Financing of political parties is regulated by the Law No. 8580 “On Political Parties” and by the Electoral Code of Albania approved with Law No. 10019, as amended.

Paragraph 2 of Article 15/1 of the above stated law stipulates that «The financing of political parties is guided by the principle of transparency. Data on the financial resources of the parties, as well as on their expenses are always published”.

This law entitles the Central Election Commission (CEC) as the body responsible for monitoring and overseeing the funding of political parties, ensuring that it is in compliance with the rules set, and in order to do so, the political parties are obligated to submit their financial reports once per year to the CEC. Further, the CEC is entitled to decide the specific amounts of public funding that each party will receive in the form of annual financial funding provided by the law, following the instructions set by Article 19 of this law “On Political Parties”.

Article 23/1 of the Law No. 8580 “On Political Parties” stipulates that:

1. Each political party must record in a special register, according to the format approved by the Central Election Commission, the amount of funds received from each natural or legal person, as well as data related to the clear identification of the donor. In any case, the donor, at the time of donation, must sign a donation declaration, according to the format approved by the Central Election Commission. The list of persons who donate amounts not less than 100 thousand ALL, as well as the respective value, must always be made public.

2. The donation of non-public funds, with a value greater than ALL 100 thousand, should be done only in a special account, opened in a bank by the political party. The person responsible for the finances of the political party, within three months from the establishment of the political party, declares to the Central Election Commission the number of the bank account, opened for this purpose. The bank account number for each political entity is published on the official website of the Central Election Commission.

3. It is prohibited to benefit from non-public funds, carried out by entities that do not declare their identity or whose identity is clearly not defined by the political party beneficiary of the non-public fund.

4. Every expense incurred by the political party is performed and documented respecting the tax legislation in force.

This Article is very important in guaranteeing transparency in the financing of the political parties.

Chapter III/1 of the law “On Political Parties” named “Financial funds and expenditure of political parties during the election campaign” was repealed by the law no 135/ 2020.

Under Article 3, paragraph 5/1 of the Electoral Code is acknowledged also the importance of transparency in the “…Electoral subjects bear the obligation for transparency and publication of election revenues and expenditures towards the Central Election Committee CEC, the persons in charge of auditing or monitoring and the public”.

Article 86 of this Code expresses the sources of election campaign financing “The sources of campaign financing for electoral subjects are:

a) funds provided in advance from the State Budget for registered political parties as electoral subjects;

b) the income of the electoral subject itself created according to the law;

c) gifts for the electoral subject and its candidates, in monetary value, nature or services provided, according to article 92/1 of this law;

ç) loans or credits received from political parties or their candidates according to the law. In no case the value of a loan or credit should exceed the amount of funds, according to point 2 of article 92/1 of this law.”

Election-registered political parties have a legal responsibility to report their candidates' income and expenses, and candidates must also comply with adjustments to the allowable donation limit. Candidates on the multi-name list must also record all donations received, ensure that in-kind donations are properly evaluated and registered, and keep one copy of the statement signed by the donor. Candidates can accept donations over ALL 50 000 only through a special bank account, even if the donations are less than ALL 50 000 but are made through the bank. These donations must be credited to the special account declared at the time of registration. If the candidate decides not to accept such donations (e.g., the candidate decides that donations should be sent to the special party account for the campaign), then the candidate is not obligated to open a special bank account.

It is illegal if an electoral subject or even a candidate accepts a donation from a natural or legal person who does not declare his or her identity, or whose identity is unclear.

Guidelines

Aiming to increase transparency and to ensure compliance with the campaign finance rules, the Central Election Committee (CEC) is authorised to appoint persons who are tasked to monitor and follow the election campaign, including adherence to prohibitions on certain forms of campaigning. In addition, the CEC shall establish and maintain an online tool for citizens to report potential violations of campaign and campaign finance rules.

The law sets limits for donations and expenditures for campaign finance and provides disclosure requirements. The auditors selected by the CEC oversee the adherence to the campaign finance rules both before and after election day. The audit results will be published by the CEC, which can impose sanctions for financial violations. Several ODIHR Needs Assessment Mission Reports, interlocutors raised concerns over insufficient transparency of the campaign financing.

The amendments to the Electoral Code related to the structure of the CEC, aimed to address previous ODIHR recommendations regarding public and private financing of campaigns and its oversight, transparency of verification of candidate nomination documents, use of public resources for electoral purposes, legal protection of people reporting on misuse of administrative resources, electoral dispute resolution mechanism.

International standards

Open policy making approaches enable governments to reach more informed and better designed policy outcomes through collaborative approaches that draw on a variety of perspectives and expertise. Different digital tools and analytical techniques are deployed so that policy is more evidence-based and data-driven. Models of engagement can include a representative citizens panel, crowdsourcing of policy ideas, or the use of collective intelligence to draw on the knowledge and expertise of a diverse public.

By the use of open data and citizen engagement, more informed, inclusive decisions can be reached, and more innovation applied in both the policymaking process and the resulting policy decisions. To maximise the possible gains of open policy making, local authorities could set up an open policy making team that publishes the data used to inform and shape policy decisions. and trains public officials in working with data to inform policymaking.

Although there are no specific open policy making standards, the following are useful points of reference:

• The Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207) provides an international legal guarantee to this right, including the establishment of measures to ensure citizen participation.
• The Council of Europe’s Guidelines for civil participation in political decision making sets out standards for engaging with citizens and civil society.
• The Committee of Ministers of the Council of Europe’s Recommendation on the participation of citizens in local public life.
• The Congress of the Council of Europe’s Resolution and Recommendation on Transparency and open government provide standards and mechanisms to enhance transparency and promote the involvement and participation of citizens in the local public life.
• The Code of Good Practice for Civil Participation in the Decision-Making Process, adopted by the Conference of International NGOs of the Council of Europe.
• Civil Participation in Decision-Making Processes. An Overview of Standards and Practices in Council of Europe Member States, European Center for Not-for-profit Law (ECNL) for the European Committee on Democracy and Governance.
• The OECD Recommendation on Open Government helps to design and implement successful open government strategies and initiatives.
• The OECD’s Guiding Principles support the development of a culture of openness.
• The OECD’s Focus on Citizens: Public Engagement for Better Policy and Services explores how to put open policy making into practice.
• The OECD’s Observatory of Public Sector Innovation lists useful toolkits and resources.
• The Open Government Partnerships Guide and Toolbox provide an extensive range of support.
• The OECD Background Document on Public Consultation defines consultation and provides a summary of consultation tools.
• Both Australia and the UK have both produced useful toolkits.
• The Royal Society of the Arts, UK, and the Forum for Ethical AI addressed some of the AI challenges posed by new technology in Democratising decisions about technology. A toolkit.

Domestic context

Transparency, accountability, and access to justice are key operational principles recognized for good governance, thus, constituting the main pillars of democracy.

Corruption weakens public trust in government, hampers legitimate economic activity, threatens public resources and income, and negatively impacts public administration and service delivery thus poses serious and far-reaching risks to country development. In 2019, Albania was ranked 106/180 countries in the Transparency International’s Corruptions Perceptions Index. Furthermore, according to the 2019 Trust in Governance Opinion Poll, out of the 2500 Albanians surveyed, 87% perceived petty corruption to be either widespread or very widespread, meanwhile 85% perceived grand corruption to be either widespread or very widespread. As such, addressing corruption presents a significant challenge that requires measures throughout all levels of public administration.

The Albanian government has supported the multilateral initiative undertaken, such as the Open Government Partnership as one of the important tools that brings together government reformers and civil society leaders to promote increased access to justice, public services and increased accountability through accessible approaches, in order to improve the quality of information for the public.

Legislation

Citizens’ initiatives are a legal right foreseen in Article 20 of the Law No. 139/2015 “On Local Self-Government”. Each community, via its authorised representatives, or not less than 1% of the inhabitants of the municipality, has the right to propose citizens’ initiatives to the municipal council on issues under the jurisdiction of the local self-government unit. Proposals presented to the municipal council as citizens’ initiatives which have a financial impact on the municipal budget shall be considered by the council according to the agenda and shall not be approved without the opinion of the head of the local self-government unit.

Guidelines

Article 20, paragraph 1, of the Law No. 139/2015 “On Local Self-Government” stipulates that ways and forms of presentation of citizens’ initiatives, their deliberation, and approval procedures shall be laid down in the statutes for the organisation and operation of the municipal council. To improve policymaking, local authorities should design and implement local action plans in order to bring new insights, perspectives, and expertise from local actors (citizens, civil society organisations, businesses, etc.). This will allow local governments to better link policymaking with the current needs and concerns of the population, and thus to a better implementation of local action plans and policies.

International standards

Participatory budgeting began in Porto Alegre, Brazil, in the late 1980s and has spread worldwide. To ensure that participatory budgeting is inclusive and reaches out to different groups, including minority groups and the disadvantaged, both online and in-person information events need to be organised, and support provided to citizens and different community groups and stakeholders in how to prepare a proposal for consideration. The introduction of gender-sensitive participatory budgeting can increase outreach and accessibility and can be planned in close co-operation with local civic groups with a focus on inclusion.

Although there are no specific standards for implementing participatory budgeting, the following serve as important reference materials:

• The Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207) provides an international legal guarantee to this right, including the implementation of measures that would facilitate its exercise.
• The Congress of the Council of Europe’s Resolution on Gender budgeting recommends introducing gender budgeting methods in the annual budgets at local and regional levels.
• The OECD Policy Brief No. 22 provides a series of policy recommendations for how key stakeholders can contribute to successful participatory budgeting.
• The World Bank’s book Participatory Budgeting provides an overview of the underlying principles, analyses current practice and includes seven in-depth case studies.
• The UN Habitat’s 72 Frequently Asked Questions about Participatory Budgeting explores how to implement participatory budgeting.
• The World Atlas of Participatory Budgeting represents the widest compilation of data on the situation of these processes worldwide.
• The UK’s Participatory Budgeting Unit has a useful list of resources and toolkits.
• The Subnational Open Budget Survey Questionnaire of the International Budget Partnership sets out a range of metrics for measuring the openness of local government budgets.
• The Principles of Public Participation in Fiscal Policy of the Global Initiative for Fiscal Transparency.

Domestic context

Participatory budgeting is a process that brings local communities closer to decision making on the allocation of the municipal or public budget. In recent years, one of the most effective mechanisms implemented by municipalities is participatory budgeting. According to the Open Budget Survey 2019 index, the Government of Albania made eight out of eight key budget documents available to the public online compared to the 2017 Survey index, where the Government made seven out of eight key budget documents available to the public online.

Barring a few exceptions, local public officials are either not very used to engaging with people on technical planning and budgeting, or find them ill-equipped to do so, or simply do not see the importance of the voice of the people.

Legislation

Articles 155 to 160 of the Constitution of the Republic of Albania and the Article 20, paragraph 2, of the Law No. 139/2015 “On Local Self-Government” state that proposals coming to the council as civic initiatives when they have a financial impact on the budget of the local self-government unit are reviewed by the council in the agenda and cannot be approved without the opinion of the mayor of the local self-government unit. Local government units are responsible to ensure that participatory budgeting is executed in accordance with the law.

Guidelines

Even though there is a positive trend in Albanian municipalities towards implementing participatory budgeting at local level, better implementation and harmonisation with the Participatory Budgeting Toolkit for Local Governments in Albania would enable more transparent and accountable local governments. In addition, this toolkit, which builds on international practices and tested participatory budgeting methodologies, provides tailored mechanisms to fit Albanian local government budget law and practices.

International standards

Different forms of consultation range from informing and consulting citizens to crowdsourcing ideas for policies, deliberative debates and assemblies where citizens can develop potential policy solutions to inform decision-making, and collaboration where social enterprises, civil society organisations or expert groups either participate in the design or delivery of services.

To improve both the inclusiveness and efficiency of public consultations, each local authority should aim to have a unit that takes responsibility for co-ordinating the guidelines and procedures for implementing public consultations, and for ensuring that they are in accordance with the prevailing legislation. Such a unit could also train officers in different departments on running public consultations. In the case of smaller local authorities with more limited resources, a unit in the central government’s responsible ministry, such as a ministry of regional development, could provide such training and support on co-ordinating and updating guidance and procedures for public consultations at the local level.

Although there are no specific standards for implementing public consultations, the following are useful reference materials:

• The Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207) provides an international legal guarantee to this right, including the establishment of measures to ensure citizen participation, such as consultative processes and local referendums.
• The OECD Background Document on Public Consultation defines consultation and provides a summary of consultation tools.
• The Council of Europe’s Guidelines for civil participation in political decision making set out the different types of civil participation in decision making.
• The Committee of Ministers of the Council of Europe’s Recommendation on the participation of citizens in local public life.
• The OECD Recommendation of the Council on Open Government supports initiatives for designing and delivering public policies and services, in an open and inclusive manner.
• Reaching Out: Guidelines on Consultation for Public Sector Bodies sets out good practice in the Republic of Ireland.

Domestic context

A recent study by the centre “Res Publica” on public consultation shows that there is a very limited number of draft acts published on the official webpage of public institutions. In the report, it is also stated that only 18% of the monitored institutions have a register for the publication of draft acts, in compliance with the Law No. 146/2014 “On Notification and Public Consultation”. This is reinforced by civil society organisations’ experience, where more than half of them do not fully agree that draft and approved laws and policies are publicly available (59%) and that draft laws, policies and laws are published in a timely manner (54%). Two main concerns raised by civil society organisations relate to the quality of the consultation processes themselves. Firstly, the institutions do not take into consideration the recommendations provided by civil society organisations, and secondly, there is a lack of argumentation regarding this issue. In addition, the latter is in violation with the Law No. 146/2014 “On Notification and Public Consultation”.

Legislation

The National Crosscutting Strategy for Decentralisation and Local Governance 2015-2020 stipulates that all decisions at the local level will be aimed to be taken with the participation of citizens and following equal, inclusive and transparent principles. In addition, the Law No. 146/2014 “On Notification and Public Consultation” specifies that local authorities should take all necessary measures to facilitate public consultation, including:

• publication of the draft act, the notification of consultation and the information related to the consultation on the draft act on the electronic register;
• publication in the transparency programme of the annual planning related to policy making, pursuant to the Law No. 119/014 “On the Right to Information”;
• provision of information related to all stages of the notification and public consultation process, beginning with the publication of the draft act, and continuing with the review of the comments and recommendations for its improvement, the organisation of public debates and the adoption of the act.

The same law obligates public institutions to publish all draft and adopted laws and policy documents. To this effect, an electronic register (www.konsultimipublik.gov.al) permits citizens and experts to consult draft laws and give their recommendations. The law’s requirements guarantee sufficient time (20 days) for civil society organisations to provide their opinion on the draft laws and policies. Also, the law stipulates that a summary of collected opinions should be made public and be part of the draft law package for approval. On the contrary, if the recommendations are not accepted, a summary of the reasons for non-acceptance should be made public.

Moreover, this law provides options for complaints in cases where the provisions for consultations are not respected, based on the claims by interest groups. However, the law does not foresee any administrative sanction against the public institution or the responsible person for notification and public consultation; and it does not foresee any procedure for appealing the decision of the public authority either.

Guidelines

To meaningfully increase citizen participation at local level, local authorities should develop a clear process of notification and public consultation in compliance with the Law No. 146/2014 “On Notification and Public Consultation”, including the review and consideration of recommendations provided by citizens and the reasons why any of the recommendations have been dismissed.

International standards

It is important that the official response is provided promptly, and that clear and well-argued reasons are provided for the decisions taken or not taken in response to a public petition.

For public petitions to become a tool that resonates with the wider public, local authorities and civil society organisations should raise awareness of the nature of petitions and the procedures for gathering signatures and submissions of the petitions in their municipalities. Clarity should also be given on the status of electronic signatures to ensure that there is full transparency about the conditions that a public petition must satisfy to receive an official response.

The following international conventions and standards relate to public petitions:

• The Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207) provides an international legal basis for this right, including the establishment of measures to ensure citizen participation, such as public petitions.
• The OECD’s Promise and Problems of e-Democracy provides information on the value and challenges of establishing an online petitioning platform.

Domestic context

Public petitions are an important mechanism for public authorities to engage with the people they serve and to protect the public interest, and for citizens to participate in the democratic process and influence the political debate and decisions. However, while public petitions are prevalent at central level, there is no official data about public petitions at the local level.

Legislation

Article 104 of the Regulation of the Parliament stipulates the right of both individuals and groups to petition the government. No later than 45 days from the date of reception of the petition, the committee chairman of the public authorities presents the petition to the commission, also proposing legal alternatives and ways for its solution, or its rejection. The petition senders are notified for the steps taken and the solution of petition issues.

Guidelines

In order to enhance and support local reforms at local level but and at the same time meet citizens’ concerns, local authorities should develop and implement a comprehensive process on how to submit, handle and respond to public petitions in compliance with the Law No. 44/2015 “On the Code of Administrative Procedures”. The petition procedure shall be accessible for the public.

International standards

When initiated by citizens or groups of stakeholders, a referendum might form part of a campaign against a perceived harmful impact on their livelihoods or the natural environment, such as a plan for a new industrial park, a tunnel to re-route cars under a river or some other urban development.

Where there is both legislation providing for local referenda, and guidelines on how to hold referenda, there is usually a minimum percentage of the eligible voting population whose signatures are required to initiate a referendum. In some cases, the mayor or elected council can also decide to formulate a question for a local referendum. Depending on the legislative framework, the referenda may be binding on the local government or consultative, where the final decision rests with the elected council.

It is important that the legislation and procedures are clear, so that citizens know the framework within which the results of a referendum will be acted upon, and what response is required from the executive or elected council of the local authority. As with public petitions, it is important to raise awareness of the procedures for gathering signatures and the status of electronic signatures to ensure that there is full transparency about the conditions that need to be met before a referendum will take place. Transparency on political party financing should also be applied to the funding of a referendum campaign, including ceilings on expenditure, and an independent audit of funding and expenditure.

The following international conventions and standards relate to local referenda:

 

Domestic context

The idea of developing referendums in Albania, has become the main subject of political debates, especially when dealing with political disputes and political debates fail to find consensus. Although every political debate mentions the idea of a referendum, once the political consensus is achieved the idea of a referendum is dropped.

Unlike many other countries of the world, where the organisation and development of referendums is common, Albania has seen only three referenda since the end of the dictatorship.

The first one was held in 1994 for the purpose of approving the new Albanian Constitution. The second was organised on 29 June 1997, together with the elections for the new parliament, where citizens voted whether Albania should be a monarchy or a republic. In 1998, the third referendum was organised to vote for the Constitution of the Republic of Albania.

Even though local referendums are one of the forms of expression of direct democracy in local governance where the citizens decide on issues of importance to the community, there is no practical case of any local referendum held in Albania.

Legislation

Article 108, paragraph 4, of the Albanian Constitution stipulates that “self-governance in local units is exercised through their representative bodies and local referendums. The principles and procedures for conducting a local referendum are provided by law in accordance with Article 151 paragraph 2“.

Law 139/2015 "On Local Self-Government", recognizes the right to hold a local referendum. Specifically, Article 18, paragraph 2, of this law provides, amongst others, in that the "consultation with the public is done through taking the initiative to organise local referendums".

In the Electoral Code, the term referendum means the direct exercise of the sovereignty of the people, through voting, on a certain issue or law.

The set of rules on referendums dates back to 2003, when it was first provided by the Electoral Code, which has been subject to several amendments in the framework of contentious electoral reforms, nevertheless, provisions on referendum has always been excluded from being part of this process.

According to Article 132 of the Law No.9087, dated 19.6.2003 Electoral Code of the Republic of Albania, the initiative for a local referendum on a local government issue can be exercised by:

-10 percent of the voters registered in the voter lists of the respective local unit or 20 thousand of them, whichever is smaller, have the right to a local referendum on a local government issue in the respective municipality or commune.

-A number of municipal councils, representing not less than one third of the population of a county, have the right to request the holding of a referendum on a local government issue at the county level.

The local referendum can be held on an issue of local government that is also a matter of special importance. A referendum on the same issue cannot be held in the same local government unit without three years passing from the prior referendum.

Local referendums may not be held later than three months before the end of the mandate of the local government bodies, nor earlier than three months after the first meeting of the local councils. If early elections are announced in a local government unit, the Electoral Code requires that the procedure for conducting a local referendum in that unit be suspended until three months after the beginning of the mandate of the local government body. Another condition for the requests for referendum is the fact that those requests that fail to go through all the procedures set out in the Electoral Code, by March 15 of each year, regardless of when they are submitted, are postponed until the following year.

For the administration of local referendums, the Electoral Code entrusts the Central Election Commission (CEC), a body which performs this task through Local Government Election Commissions (LGECs). The CEC administers the local referendum in accordance with the procedures provided for the conduct of local elections, emphasising that this task should be performed for as far as it is possible or necessary.

Guidelines

According to the type of act or issue raised, the Albanian Constitution provides for three types of referendums: constitutional, legislative and referendum on an issue of particular importance. Article 150 para 3 states that: “principles and procedures for conducting a referendum, and its validity, are provided by law”.

Based on this constitutional provision, the Assembly of Albania approved the Election Code, law no. 8609/2000. Referendum issues are addressed in articles 114-128 of this Code These provisions, with minor and not essential changes, were also included in the Electoral Code adopted by Law no 9087/2003. The Electoral Code legislative reforms carried out till 2008, did not treat, in any case, the issue of referenda. Law no.10019/2008 “The Electoral Code of the Republic of Albania”, as amended does not contain at all provisions on referenda, but a transitory provision, article 185, stating that "provisions for referendums (Part IX of law no.9087/2003) and any part of its related provisions shall remain in force until the adoption of the new law on general and local referendums.

The administration of the referendum process and the disclosure of their outcome shall be made in accordance with this Code. Although the Electoral Code approved by Law no 9087/2003, was abolished, its ninth part "Referendums" was upheld. Until today the law on referendums is not approved.

The analysis of the Electoral Code provisions regarding referendums shows deficiencies, uncertainty, and incompatibility with the Constitution in some cases. This is evidenced by the Venice Commission and OSCE / ODIHR findings.

The Code does not address referendum campaign funding issues related to source of funds and their use, transparency, reporting and audit of these expenses.

International standards

The following international conventions and standards relate to bribery:

• The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions establishes legally binding standards to criminalise bribery of foreign public officials in international business transactions. It is the first and only international anti-corruption instrument focused on the ‘supply side’ of the bribery transaction.
• The International Anti-Bribery Standard 37001 specifies a series of measures to help organisations prevent, detect and address bribery.
• The OECD Good Practice Guidance on Internal Controls, Ethics, and Compliance which supports the convention on combating bribery.

Domestic context

Less than half of Albanian citizens (44%) claim to have had experience with bribery in 2015. Bribery is more prevalent in rural areas than in urban areas and bribes are given in the form of cash and in-kind contributions. Mostly, bribes are paid to facilitate bureaucratic procedures, or to avoid deficiencies and bottlenecks in the public sector. The most common reasons for paying bribes cited by businesses are: to “speed up business-related procedures” (39.1 per cent of all bribes), “making the finalisation of a procedure possible” (16.8 per cent), “receiving better treatment” (7.2 per cent), “reducing the cost of a procedure” (6.6 per cent) and “receiving information” (2.8 per cent). At the same time, almost one out of seven (13.5 per cent) bribes paid serve no specific immediate purpose for the businesses paying them, suggesting that these are “sweeteners” given to public officials to “groom” them for future interactions in the interest of the company.

The Government has launched several online portals to report bribery and other forms of corruption.

Legislation

Based on Article 244 of the Criminal Code, the active corruption of persons exercising public function is defined as «promising, direct or indirect proposal, offer, or giving, to a person, who exercises public functions, of any irregular benefit for himself or a third person in order to act or not act in relation to his duty, is punished by imprisonment from six months up to three years».

As per Article 245 of the Criminal Code, the commission of this same offence by high state officials and local elected representatives is considered an aggravating circumstance and, thus, the penalty in this case is imprisonment from one to five years.

As regards passive corruption committed by persons that exercise public functions, it is defined in Article 259 as follows: «Soliciting or taking, directly or indirectly, any kind of irregular benefit or of any such promise up to the value of 50 000 Albanian lek (ALL) or the equivalent in foreign currency, for himself or for a third person, or accepting an offer or promise deriving from an irregular benefit, by a person who exercises public functions, in order to act or not act in the exercise of his duty, is punishable by imprisonment of from two up to three years. The same act, when the irregular benefit or the promise of such a benefit is over the value of ALL 50 000 or the equivalence in foreign currency, is punishable by imprisonment of from three up to eight years ». As with active corruption, and as stipulated in Article 260, the penalty for passive corruption by high state officials or local elected officials increases from four up to twelve years.

International standards

• The United Nations Convention against Corruption is the only legally binding universal anti-corruption instrument.
• It is supported by this Technical Guide to the Convention.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173) aims to co-ordinate criminalisation of corrupt practices and to improve international co-operation in the prosecution of offences.
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174) defines common international rules for effective remedies for persons affected by corruption.
• The European Union’s Convention against Corruption Involving Officials aims to fight corruption involving officials from the EU or its Member States.
• The OECD Recommendation on Public Integrity shifts the focus from ad hoc integrity policies to a context dependent, behavioural, risk-based approach with an emphasis on cultivating a culture of integrity across the whole of society.

Conflict of interest is also covered by the following international standards and guidelines:

• The Committee of Ministers of the Council of Europe’s Recommendation on Codes of Conduct for Public Officials and the European Code of Conduct for all Persons Involved in Local and Regional Governance cover the general issues normally thought to be necessary for avoiding such conflicts.
• The Congress of the Council of Europe’s Resolution and Recommendation on Conflicts of interest at local and regional level propose a set of measures to mitigate the risks of conflict of interest and ensure that it is identified at an early stage.
• The OECD Guidelines for Managing Conflict of Interest in the Public Service identify principles and standards for developing policies.
• The Congress of the Council of Europe’s Resolution and Recommendation on Making public procurement transparent at local and regional levels and the OECD Checklist for Enhancing Integrity in Public Procurement provide guidance for enhancing transparency and for promoting integrity in procurement

 

Domestic context

Study findings suggest that the management and prevention of conflict of interest in Albania has been deficient due to the frequent amendments of the regulatory framework and lack of law enforcement. The reported cases of conflict of interest focus almost exclusively on the conflicts of interest of financial or economic nature. Local governments, as a result of the decentralisation process and their increased interactions with the public, have been increasingly exposed to the risk of conflict of interest. The cases of conflict of interest are mostly related to building permits, procurement, and use of public spaces. One of the efforts to address this issue is also the approval of the Inter-Sectoral Strategy against Corruption 2015-2020.  In 2014, legislative amendments in laws related to the declaration of assets and the conflict of interest were approved, increasing the number and frequency of audits from the High Inspectorate of Declaration and Audit of Assets and Conflict of Interest (HIDAACI).

Legislation

According to Article 3 of the Law No. 9367 “On the Prevention of Conflicts of Interest in the Exercise of Public Functions”, as amended, conflict of interest is a «situation of conflict between the public duty and the private interests of an official, in which he has direct or indirect private interests that affect, might affect or seem to affect the performance, in an incorrect way of his public responsibilities and duties».

Article 29 of the above stated law provides restrictions on mayors and chairmen of regional councils, who cannot be chairmen of CSOs, conduct economic activities, be members in managerial organs of private or civil society sectors, and possess shares or capital in a commercial company. The central authority responsible for the implementation of this law is the HIDAACI. In Article 44, this law provides a range of administrative penalties. Based on the type of conflict of interest, the fines range from ALL 30 000 to 500 000. The Law also stipulates disciplinary measures in Article 45.

Conflict of Interest is mentioned also in Article 4 of the Law No. 9131 “On the Rules of Ethics in the Public Administration”, Article 46 of the Law No. 152/2013 “On the Civil Servant”, and Article 26 of the Law No. 9643 dated 20.11.2006 “On Public Procurement”. Other related secondary legislation and HIDAACI regulations are important pieces of legislation related to Conflicts of Interest. Conflict of Interest is not provided as a criminal offence in the Albanian Criminal Code, even though it is mentioned in many laws, such as the law No. 9367 “On the Prevention of Conflicts of Interest in the Exercise of Public Functions”.

International standards

As one type of corruption, embezzlement is covered by the following international standards and guidelines:

• The United Nations Convention against Corruption is the only legally binding universal anti-corruption instrument.
• It is supported by this Technical Guide to the Convention.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173) aims to co-ordinate criminalisation of corrupt practices and to improve international co-operation in the prosecution of offences.
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174) defines common international rules for effective remedies for persons affected by corruption.
• The European Union’s Convention against Corruption Involving Officials aims to fight corruption involving officials from the EU or its Member States.

Domestic context

Only 8.2% of civil servants perceive embezzlement as very prevalent. In addition, according to public servants, embezzlement is one of the less witnessed corrupt practices. Despite of this perception given by public officials in the study, the practice shows that there are many cases of embezzlement reported by the Supreme State Audit. Moreover, there are some cases reported which have been successfully examined and ruled by the judiciary.

Legislation

As defined in Article 248 of the Criminal Code, abuse of office is understood as the «deliberate accomplishment or non-accomplishment of actions or failures to act, in violation to the law and constituting the failure of a person, who carries out public functions, to do his duties regularly, in cases when it has led to bringing him or other persons unjust material or non-material benefits or when it has brought damages to the legitimate interests of the state, citizens, and other legal entities, when it does not constitute another criminal offence, is punishable with imprisonment up to seven years».

In addition, based on article 246, «appropriating a public title or office accompanied with the actions pertinent to the holder of the title or office, constitutes criminal contravention and is punishable by a fine or up to two years of imprisonment. If the act is committed for embezzlement purposes or has encroached the freedom, dignity or other fundamental rights of the citizen, it is punishable by a fine or up to five years of imprisonment».

Embezzlement is mentioned also in Article 57 of the Law No. 152/2013 “On the Civil Servant”, and in Article 13 of the Law No. 9131 “On the Rules of Ethics in the Public Administration”.

International standards

As one type of corruption, fraud is covered by the following international standards and guidelines:

• The United Nations Convention against Corruption is the only legally binding universal anti-corruption instrument.
• It is supported by this Technical Guide to the Convention.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173) aims to co-ordinate criminalisation of corrupt practices and to improve international co-operation in the prosecution of offences.
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174) defines common international rules for effective remedies for persons affected by corruption.
• The European Union’s Convention against Corruption Involving Officials aims to fight corruption involving officials from the EU or its Member States.

Domestic context

Based on study results, 36.7% of civil servants perceive fraud as a more or less prevalent corrupt practice in the Albanian civil service. Men dominate among those having witnessed embezzlement, fraud and influencing of unfair decisions. Measures to stamp out fraud are contained in the New Customs Code, which as regards Customs offenses and penalties, is based on the proposal of the European Commission and on best practices of EU member states. The new tax administration IT-system allows a simplification of processes and reduces the opportunities for fraud and corruption. As per the Law No. 112/2015 “On Public Financial Inspection”, the Anti-Fraud Coordination Service (AFCOS) is appointed in Albania to facilitate the co-operation with relevant institutions in the European Union.

Legislation

Based on Article 143 of the Criminal Code fraud is defined as «stealing property through lies or abuse of trust is punishable by a fine or up to five years of imprisonment. This very act, when committed in complicity in the detriment of several persons, or more than once, is punished by imprisonment from two to six years and, when it brings about serious consequences, it is sentenced by imprisonment from five to ten years».

International standards

As one type of corruption, nepotism is covered by the following international standards and guidelines:

• The United Nations Convention against Corruption is the only legally binding universal anti-corruption instrument.
• It is supported by this Technical Guide to the Convention.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173) aims to co-ordinate criminalisation of corrupt practices and to improve international co-operation in the prosecution of offences.
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174) defines common international rules for effective remedies for persons affected by corruption.
• The Congress of the Council of Europe’s Resolution and Recommendation on Fighting nepotism within local and regional authorities sets out standards for good practice and presents strategies for preventing corruption in the recruitment procedures of European local and regional governments.
• The European Union’s Convention against Corruption Involving Officials aims to fight corruption involving officials from the EU or its Member States.

Domestic context

Data show that recruitment procedures in Albania’s public sector suffer from lack of transparency. More than 36% of applicants who did not get a job think that somebody else was employed due to cronyism or nepotism, while an additional 25% believe that somebody else was hired due to bribery. Nepotism prevails among the most witnessed corrupt practices at the workplace, which may be because Albania is a country where social networks are very strong. Due to that, many nepotistic practices in Albania are based on the personal relationships and the network of social interactions.

Legislation

In Albania, there is no specific law on nepotism. However, Article 5 (“Private Interests”) of the Law No. 9367 “On the Prevention of Conflicts of Interest in the Exercise of Public Functions” mentions private interests of an official as those interests that conform with, contain, are based on or come from relationships of family or cohabitation, of friendship, and any other juridical civil relationship, among others.

On 27 January 2006, two decisions of the Council of Ministers were approved. The decision of the Council of Ministers No.43 “On avoiding nepotism and influence of power on the hiring and career of personnel of the public administration” and the decision of Council of Ministers No.44 “On avoiding nepotism in the public administration” which provides:

“Employees related to each other by family relationship, cognation or marriage are prohibited from exercising their duties within a public institution. The cause for the termination of employment is the existence of any of the following connections:

a) family ties: spouse / cohabitant, son, daughter, and their children.

b) cognation relations: parents, siblings and their children, aunts or uncles.

c) family relationship: parent, child, brother / sister of the spouse, as well as spouse / cohabitant of the children”.

However, these decisions were deemed as incompatible with the Constitution.

 The Constitutional Court found that the above-mentioned decisions imposed a restriction on the right to work for the citizens.  The right to work is guaranteed under Article 49 of the Constitution.

“Everyone has the right to earn a living by lawful employment, which he has chosen or accepted. They are free to choose the profession, the job, as well as the system of his professional qualification.”

Also, Article 17 of the Constitution guarantees that:

1. Restrictions on the rights and freedoms provided for in this Constitution may be imposed only by law for a public interest or for the protection of the rights of others. The restriction must be in proportion to the situation which has dictated it.

2. These restrictions may not infringe the essence of the freedoms and rights and in no case may they exceed the restrictions laid down in the European Convention on Human Rights.

The Constitutional Court considers that this provision, in the way it is formulated, has not left the possibility of delegation to any state authority other than the Parliament, as a representative body. The expression "only by law" means that if it is necessary to limit a right provided for in the Constitution, then this assessment is at the discretion of the legislator and not to other bodies, including the Council of Ministers.

The unconstitutionality of the decisions not only lies in the fact that the decisions of the Council of Ministers have an effect on previously established relationships, but also because of violation of the principle of proportionality, as employees affected by these decisions were not provided with another job

Related to the regulations made by the decisions of the Council of Ministers regarding the retroactive effects, it should be noted that even if these restrictions were made by law, according to the criteria of Article 17/1 of the Constitution, the principles mentioned above should be applied.

For these reasons, these decisions are invalidated as incompatible with the Constitution.

With the invalidation of these decisions of the Council of Ministers, the legislation on nepotism remains weak, as the only related legal provision is Article 5 (“Private Interests”) of the Law No. 9367 “On the Prevention of Conflicts of Interest in the Exercise of Public Functions”, as amended. Nepotism is not foreseen as a criminal offence in Albania but it is considered an administrative offence and it is punished by a fine varying from 50’000 ALL to 300’000 ALL.

International standards

• The United Nations International Covenant on Civil and Political Rights (Articles 19, 21, 22 and 25), further elaborated in paragraph 25 of the Human Rights Committee’s General Comment No. 25.
• The Council of Europe’s European Convention on Human Rights (ETS No. 5), in particular Articles 10 and 11, and Article 3 of the Protocol No. 1 to the Convention (ETS No. 9).
• The United Nations Convention against Corruption, in particular Articles 7, 17 and 19.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173).
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174).
   

The misuse of administrative resources during electoral processes is covered by the following international standards and guidelines:

• The Council of Europe’s Venice Commission and the OSCE/ODIHR Joint Guidelines for Preventing and Responding to the Misuse of Administrative Resources during Electoral Processes specify a series of measures and laws to be adopted in that regard.
• The Council of Europe’s Venice Commission report on the Misuse of Administrative Resources during Electoral Processes.
• The Congress of the Council of Europe’s Resolution on The misuse of administrative resources during electoral processes: the role of local and regional elected representatives and public officials and its Explanatory Memorandum.
• The Congress of the Council of Europe’s Resolution on Preventing corruption and promoting public ethics at local and regional levels and its Explanatory Memorandum.
• The Congress of the Council of Europe’s Checklist for compliance with international standards and good practices preventing misuse of administrative resources during electoral processes at local and regional level.
• The Congress of the Council of Europe’s booklet on Administrative Resources and Fair Elections provides practical examples and guidance.

Domestic context

The misuse or abuse of administrative resources (sometimes referred to as “public resources” or “state resources”) during parliamentary and local election campaigns in Albania has been one of the most recurrent concerns over the last two decades, as reported by international election observers. In the context of the parliamentary elections of 2017, the Parliament convened an extraordinary session on 22 May 2017 to take actions related to the electoral process. Among other measures, a political agreement between the two main parties led to the establishment of an inter-ministerial structure in the form of a Task Force to prevent the abuse of public officials in the electoral process. Also, to prevent the risks of the misuse of administrative resources, penalties were introduced for public servants who might be involved in campaigning.

Although significant steps have been made at national, local and regional levels, elections have their own characteristics, which make them especially vulnerable to the misuse of administrative resources. Therefore, specific actions may be required for local and regional elections.

At the local and regional levels, elected representatives usually have personal ties to the territorial community in which the election takes place. Likewise, their relation to public employees and civil servants working for the municipality is often particularly close.

Moreover, local elected representatives and/or employees frequently have functions which are relevant during the electoral campaign, such as the allocation of places for campaigning. Municipal employees may also have tasks related to the preparation of the elections, for instance, as members of polling station commissions.  Such functions may give them possibilities of interference in favour of the incumbent or the party/parties in power, which may be problematic in local and regional elections.

Legislation

On 22 May 2017, in the above-mentioned context of reforms, the Parliament of Albania approved amendments to the election legal framework. These amendments were adopted to the Law No. 8580, “On Political Parties”, the Law No. 97/2013 “On Audio-visual Media”, and the Criminal Code. The amendments introduced new requirements to campaigning, campaign finance, and advertising in broadcast media, as well as established new electoral offences and increased sanctions for existing ones. However, the reform process lacked transparency and consultation with stakeholders, and the late timing created significant difficulties in the implementation of key aspects of the election administration.

The amendments to the Law No. 8580 “On Political Parties” aimed to limit campaign spending. They largely constrained the use of electoral promotion materials at urban level and prohibited paid political advertising in media outlets, television, and radio channels. Furthermore, Article 88 of the Electoral Code of Albania prohibits the use of public resources for the support of electoral subjects.

In line with the amendments to the Law No. 8580 “On Political Parties”, the revision of the Law No. 97/2013 “On Audiovisual Media” determined the prohibition of paid political advertising in media outlets during the electoral period. However, the legal framework still fails to regulate political advertising, paid or unpaid, hidden or direct, beyond the electoral period, as well as in written and online media within or beyond the electoral campaign.

As regards the Criminal Code, Articles 325-332 (Chapter X) provide for 15 criminal offences which threaten the freedom and integrity of free elections.^[i] The new criminal offenses introduced in 2017 include the abuse of public function for electoral activities, the use of other peoples’ identification documents, and more detailed prohibitions on vote-buying and vote-selling. Article 328/a (Using the public function for public electoral activities) is of a particular relevance:

«The use of the public goods, the function or the state activity or of the financial or human resources by an employee, who carries out a state duty, to favour a political party or a candidate in the elections constitutes a criminal offence and is punishable by imprisonment of one year to three years».

International standards

As one type of corruption, extortion is covered by the following international standards and guidelines:

• The United Nations Convention against Corruption is the only legally binding universal anti-corruption instrument.
• It is supported by this Technical Guide to the Convention.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173) aims to co-ordinate criminalisation of corrupt practices and improve international co-operation in the prosecution of offences.
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174) defines common international rules for effective remedies for persons affected by corruption.
• The European Union’s Convention against Corruption Involving Officials aims to fight corruption involving officials from the EU or its Member States.

Domestic context

Extortion has been a problematic criminal activity in Albania and, though not in very high numbers, it is a criminal form that has assumed organised features. In the cases adjudicated by the First Instance of Serious Crimes Court during the time period 2008-2012, about 18% of the judgements had to do with extortion.

While the prevalence of extortion for businesses in Albania amounts only 0.5%, the data from the United Nations Office on Drugs and Crime report on Business, Corruption and Crime in Albania shows extortion is a cause for concern. Extortion is a very serious crime in which the perpetrators try to obtain money or other benefits from a company by threatening or intimidating managers or employees. In some cases, extortion is also presented as the offer of “protection” from damages to property or persons. Sometimes extortion can be linked to organised crime groups, who have the power and the means to make a credible threat towards a business with potentially dire consequences if their demands are not met.

On the Research Report of Gender and Corruption in the Albanian Civil Service, among the corrupt practices scoring highest under the “not prevalent” response appear to be extortion. Women more often than men see extortion (including sexual extortion) as not prevalent (22.9% of the women as compared to 16.7% of the men) or little prevalent (33.3% of the women as compared to 31.3% of the men). Likewise, more men than women believe that extortion is highly prevalent in the Albanian Civil Service (6.3% men vs. 4.2% women).

The 2020 Crime & Safety Report on Albania published by OSAC (Overseas Security Advisory Council) states that the Albanian government is making a concerted effort to improve the country’s law enforcement capabilities and reduce corruption. Organized crime has a noted impact on Albania, with a network of criminal organisations involved in drug trafficking, extortion, bribery etc.

Legislation

Based on Article 109/b of the Criminal Code, “Forcing through blackmail or violence for submission of the wealth (Extortion)”, is defined as «Causing a person, through blackmail or violence, to do or not do a certain action, in order to unjustly gain wealth or any other benefit, for themselves or for third persons, is sentenced with imprisonment from two to eight years.

The same act, when committed by using or by threatening to use a gun, torture, inhuman and humiliating acts which have caused harm to the health, are sentenced by imprisonment of from seven to fifteen years.

When the crime has caused the death of the person, it is sentenced by life imprisonment».

International standards

As one type of corruption, clientelism is covered by the following international standards and guidelines:

• The United Nations Convention against Corruption is the only legally -binding universal anti-corruption instrument.
• It is supported by this Technical Guide to the Convention.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173) aims to co-ordinate criminalisation of corrupt practices and to improve international co-operation in the prosecution of offences.
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174) defines common international rules for effective remedies for persons affected by corruption.
• The Congress of the Council of Europe’s Resolution and Recommendation on Fighting nepotism within local and regional authorities sets out standards for good practice and presents strategies for preventing corruption in the recruitment procedures of European local and regional governments.
• The European Union’s Convention against Corruption Involving Officials aims to fight corruption involving officials from the EU or its Member States.

Domestic context

Concerns over accountability, transparency, and the capacity of local governing bodies to deliver quality services remain a pressing matter in Albania. Clientelism is a phenomenon widespread throughout the Western Balkans, but it manifests itself in various forms and ways, which are difficult to identify and scientifically verify.

Besides employment, the inclusion of families within the social aid scheme in the months prior to elections is a form of clientelism, especially important for low-income families. Cases of decision-making by local institutions which increased the number of persons receiving social aid during the pre-election period in 2017 indicate the persistence of this form of political clientelism.

Albanian legislation on parties is restrictive for regional, local, and religious parties, and prohibits ethnic parties. However, if the lobbying phenomenon continues to develop as it is expected, the relevant legislation and the current parties’ profile will need to be reviewed. As long as the state continues to be the biggest employer, clientelist methods will continue to damage the quality of administration and other public sectors. Simultaneously, the negative effect is twofold: those who benefit are identified with the party in power, those who lose are identified with the competitive alternative of the current party in government and expected to repeat in case of victory of their team, the same selective and clientelist process.

Legislation

According to Article 328 of the Criminal Code “Active Corruption in Elections” provides that “offering or giving money, material goods, the promise of a job or other favours in any form, to the voter or other related persons, in order to obtain the signature for the nomination of a candidate in the election, to vote in a certain way, to participate or not to vote, or to engage in illegal activities in support of a candidate or political party, constitutes a criminal offense and is punishable by imprisonment of one to five years.”

International standards

As one type of corruption, patronage is covered by the following international standards and guidelines:

• The United Nations Convention against Corruption is the only legally binding universal anti-corruption instrument.
• It is supported by this Technical Guide to the Convention.
• The Council of Europe’s Criminal Law Convention on Corruption (ETS No. 173) aims to co-ordinate criminalisation of corrupt practices and to improve international co-operation in the prosecution of offences.
• The Council of Europe’s Civil Law Convention on Corruption (ETS No. 174) defines common international rules for effective remedies for persons affected by corruption.
• The Congress of the Council of Europe’s Resolution and Recommendation on Fighting nepotism within local and regional authorities sets out standards for good practice and presents strategies for preventing corruption in the recruitment procedures of European local and regional governments.
• The European Union’s Convention against Corruption Involving Officials aims to fight corruption involving officials from the EU or its Member States.

Since the misuse of administrative resources during electoral processes is the most widespread manner to use patronage as a form of corruption, the following international standards are of relevance:

• The Congress of the Council of Europe’s Resolution on the Misuse of Administrative Resources during Electoral Processes: The Role of Local and Regional Elected Representatives and Public Officials provides international standards and best practices to tackle the misuse of administrative resources.
• Joint Guidelines of the Venice Commission and OSCE/ODHIR for Preventing and Responding to the Misuse of Administrative Resources during Electoral Processes aim to assist decision makers in adopting laws and initiating concrete measures to prevent misuse of administrative resources.

Domestic context

The most common corrupt practices in Albania that seem to contribute to the high levels of perceived corruption include favouritism, such as nepotism and patronage.

During electoral periods, patronage networks employ vote-buying/selling as a method to collect votes in exchange for different forms of favours/support.

In order to decrease the levels of patronage in Albania, several changes were made to the Electoral Code related to employment during election campaign. Considering the electoral campaign of the parliamentary elections of April 2021, not much progress has been made. 

Legislation

The Electoral Code of Albania in Article 3, under “General Principles”, paragraph 7, provides: “Except as otherwise provided by law, it shall be prohibited to provide electoral subjects with the opportunity to use equipment, funds and materials that are public property, as well as with other individuals who are working in the public administration of any level”.

The Electoral Code of Albania also includes regulations such as: “During the election campaign, employment, dismissal from work and job transfers, in public entities or public institutions are prohibited, except in justified cases.

Also, it is prohibited for the employees of the state administration that during the working hours and within the premises of the state institutions, to participate in activities of a political nature, or that benefit a political party or candidate in the election campaign. An employee of the state administration is prohibited from using public goods, state function or activity or public financial, material, human resources, in order to favour a political party, coalition or candidate in elections.

The employee of the state administration has the right to participate in the political or electoral activities of an electoral subject or candidate, only after the official working hours and outside the premises of the state institutions.