The European Commission for Democracy through Law (the “Venice Commission”) today adopted two opinions concerning Albania – on the Law on Audio-visual Media Services and on the appointment of members of the Constitutional Court.

The first opinion was prepared at the request of Monitoring Committee (*) of the Council of Europe’s Parliamentary Assembly and concerned draft amendments to the Law on Audio-visual Media Services. The Venice Commission stressed that the Albanian authorities have to deal with a genuine problem of irresponsible behaviour of some online media spreading hurtful rumours and slanderous attacks on public figures. That being said, the draft amendments, as they are formulated now, raise important issues and are not ripe for adoption. The currently discussed proposal consists of extending the jurisdiction of the Albanian Media Authority (AMA) and the Complaints Committee (CC) to the online media

Extending the administrative regime, currently existing in the broadcasting media field, to all internet users is questionable because it risks exposing individual bloggers and users of social networks to undue restrictions of their freedom of expression. The AMA will would receive important administrative powers in respect of nearly all Albanian internet users, in particular the power to impose immediately enforceable heavy fines for improper media content. Before giving such extensive powers to the AMA and the CC, it is necessary to review the composition of those bodies, in order to ensure their autonomy from government and corporate control and enhance their professionalism. Online media should benefit from due process and any administrative decisions should be subjected to full judicial review. Sanctions should be proportionate.

The Commission acknowledged the Albanian authorities’ genuine efforts to improve the draft amendments, and their openness for a dialogue. In its opinion, the Venice Commission encourages the authorities to support the setting-up of an effectively functioning and independent self-regulatory body capable of ensuring an effective and respected system of media accountability in the online media field. It is also necessary to ensure that the existing legal and judicial remedies are effective in tackling defamation and hate speech in online publications.

In the second opinion focusing on the appointment of judges to the Albanian Constitutional Court, requested by both the Albanian parliament and the President, the Venice Commission notes that the original constitutional design for the appointment of judges to the Constitutional Court was correctly interpreted by the Assembly but could not function as expected, as a result of the exceptional number of judges to be replaced due to the ongoing vetting process and of the lack of institutional cooperation between the President and parliament, which resulted in the Constitutional Court being dysfunctional.

The Commission concludes that in a situation of unclarity and in the absence of a functioning Constitutional Court, the nomination by default of a candidate to that Court should not have been considered valid, as the President had raised a question relating to the interpretation of the relevant procedure. It would have been essential that the President and parliament agree on such interpretation before continuing with the nominations; instead, they both proceeded unilaterally.

In the short term, in the Commission’s view, as long as the shortage of candidates persists and the lists are made up of largely the same few candidates, and several appointments have to be made in the same period, the President and the Assembly (and the High Court, if it starts functioning soon) have to agree on the procedure to be followed in line with the constitutional and legal provisions, and the JAC should accept such interpretation. Pending a consensus on the interpretation of the appointment procedure, the JAC should send the list(s) to the Assembly as soon as the President has proceeded with his/her appointment(s), or after 30 days if he/she fails to do so without justification.

In the long term, the Council of Europe’s experts recommend simplifying the constitutional model adopted in 2016, in particular by removing the sequence rule (**), suggesting that the quotas of the three appointing bodies may be maintained by allocating automatically the renewal of a mandate to the same authority which had appointed the outgoing judge.

Secondly, the fixed years of the beginning and end of the nine-year mandates should be removed. The Constitutional Court judges should always enjoy a full nine-year mandate, even if elected with some delay or if they took up a mandate that was terminated early. Once the sequence rule is abolished, this amendment would not only make the position of constitutional judge more attractive to qualified candidates, but also more meaningful.

The Venice Commission underlines the absolute need for dialogue and co-operation among state institutions. Their mandates and powers must be respected, so that they can fulfil their institutional objectives, always seeking the best benefit for the citizens of Albania.

Finally, the Commission recommends that additional efforts be made for the vetting process to be completed swiftly.

 Full text of the opinion

(*) The Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe.

(**) The permanently applicable order in which the vacancies would be allocated to the three appointing bodies: first to the President, second to the Assembly, third to the Hight Court.