Requested by: Albania, Parliament, Speaker

Recommended Measures:
Despite its legitimate aim in the current situation in Albania - that of removing offenders and their influence from high-profile governance and political life - the draft constitutional proposal for integrity control of politicians fails to provide appropriate guidance and the safeguards needed, even at the constitutional level, for such a large-scale, complex and sensitive process, with severe implications for the rights of those subject to it. As it currently stands, the vetting proposal lacks legal clarity and legal certainty, both as regards its intended scope, the grounds for ineligibility and loss of mandate, and its implementation mechanism. In many respects, it also raises issues of proportionality. The draft law fails to define certain key elements notably (i) what is meant by having contact with certain persons (ii) what is meant by being involved with organised crime and (iii) what is meant by being involved in the circle of subjects who have contacts with persons. It is unclear what provisions are to govern the vetting procedure. The absence of stated safeguards (other than the requirement for a 3/5 majority) in a proposal that is otherwise in places quite detailed, together with the proposed insertion of two key provisions into the Constitution as “extraordinary measure” gives rise to a risk that ordinary due process procedures may not (be intended to) apply. It is not clear who is to carry out the vetting of public officials and election candidates and whether this will be done by a judicial or other independent body. Also, it is not clear whether any disqualification is to be permanent or limited in time. In these respects legal certainty is lacking. In addition, no safeguards are proposed to avoid the risk that it will be used in a politically-biased or arbitrary manner. In its intended application to elected officials, the draft law is not in compliance with the Article 3 of the First Protocol to the ECHR and the Code of Good Practice in Electoral Matters, as the proposed new vetting ground - having contacts with persons involved in organized crime - provides a very wide possibility to restrict the right to stand in elections regardless of the nature of the “contacts”, does not provide for a court decision or decision by another independent body for the disenfranchisement and the restriction does not have a temporary nature. As it stands, the proposal may actually easily lead to yet more examples of abuse of power. Insofar as the vetting is intended to apply to unelected officials, uncertainty about its scope and the implementation scheme make it difficult to see how applicable Article 6 ECHR rights will be guaranteed by the draft constitutional amendments if enacted in the present form. These uncertainties also make it impossible for the Venice Commission to judge whether the proposal may be considered a proportionate response to what is undoubtedly a real problem in Albania. Moreover, account being taken of the existing provisions of articles 6/1, 45(3) and 179/a of the Albanian Constitution and related implementing legislation (in particular the Decriminalization Law), as well as other available democratic mechanisms, the added legal value of the proposed constitutional amendments may be put into question. It is for the Albanian Parliament to decide on forthcoming steps concerning the proposed constitutional amendments, through constructive dialogue between all political forces and the society at large, in the interest of the Albanian democracy. The Venice Commission remains at the disposal of the Albanian authorities for further assistance in this matter.

Measures taken: The Albanian Parliament rejected the proposed constitutional amendments