Yesterday the European Commission for Democracy through Law, also known as the Venice Commission, published the draft opinion on draft constitutional amendments enabling the vetting of politicians in Albania. The Commission states that considering the close connections of politicians and officials with organized crime, the Democratic Party proposal on vetting politicians in Albania is legitimate.
Commission’s opinion on the matter was requested by Speaker of Parliament Gramoz Ruçi.
The Venice Commission states that 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.
Following a Venice Commission delegation visit to Albania in November 2018, they consider 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 finds it difficult to clearly determine the added legal value of the draft amendments. It is therefore up to the Albanian Parliament to decide on forthcoming steps, through constructive dialogue between political forces and the society at large, in the interest of the Albanian democracy.
The draft opinion is expected to be adopted by the Venice Commission at its Plenary Session on 14 December 2018. It remains to be seen whether political forces in Albania will be able to engage in a constructive dialogue regarding the vetting of politicians.
