Parliament is expected to vote today on the Constitutional amendments proposed by the Democratic Party (PD) to institute a form of “political vetting.” The proposed changes to the Constitution would subject “Every member of the institutions established by the constitution and by the law, appointed in office by voting from the Parliament, including the function of the Prime Minister or members of the Council of Ministers,” to a process of “integrity control.”
The mechanism of this integrity control, which aims to decriminalize Parliament and the government, will have to be established in a separate law, to be adopted with a qualified majority of 3/5 of all its members.
The vetting of politicians has been strongly opposed by the ruling Socialist Party, several of whose members are currently under investigation by the Prosecution.
At the request of Speaker of Parliament Gramoz Ruçi, the Constitutional amendments were forwarded to the Venice Commission of the Council of Europe, which held consultations and recently issued a report.
According to the Venice Commission, the constitutional amendments and law on the vetting of politicians should be imposed (1) in pursuit of a legitimate aim, and (2) the means employed should not be disproportionate. It considers the first condition met, i.e. connections between politicians and criminals are a legitimate aim to proceed with constitutional amendments and laws on politicians vetting.
The issue of close contacts of members of parliament or municipal councils or government officials with organized crime is a long-standing problem in Albania. As shown by the first results of the vetting procedure of the judiciary, the interrelation of the state institutions and organized crime appears to be very high. This hampers trust in the state’s institutions and delegitimizes its functions.
If organized crime is governing state institutions or at least has an influence on their work, the principles of rule of law cannot be applied in practice. […] In a state governed or influenced by organized crime, principles of dignity, equality or legality are set aside.
Regarding the second condition – the principle of proportionality – in the absence of any draft implementing legislation the Venice Commission finds it difficult to assess the proportionality of the measures introduced within the scope of the vetting procedure.
However, the Commission lays some basic aspects to be considered throughout the process of drafting laws on the vetting of politicians:
— Subjects undergoing the vetting process should be clearly defined;
— The legal certainty of “contacts with organized crime” should be clearly defined;
— The legal certainty of “individuals involved in organized crime” should be clearly defined;
— Legal and illegal contacts with crime should also be clearly defined;
— The provision on the burden of proof on the vetted person lacks clarity;
— The period of reference for the integrity control and its reasonable length should be clearly defined;
— The timeframe for imposing the vetting measures should be clearly defined;
— Legislation on implementing mechanisms for the vetting process is indispensable;
— The Venice Commission cannot assess whether the conditions provided in the “Decriminalization Law” may be suitable for the vetting of politicians;
— Politicians and other officials may not be subject to the same vetting mechanisms as judges and prosecutors;
In the absence of a final legislation to assess, the Venice Commission found it difficult to clearly determine the added legal value of the draft amendments. The Parliamentary session today will therefore be essential to flesh out what the actual vetting process would look like.
