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Opinion on Draft Constitutional Amendments Enabling the Vetting of Politicians in Albania

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Opinion on Draft Constitutional Amendments Enabling the Vetting of Politicians in Albania Strasbourg, 17 December 2018 CDL-AD(2018)034 Opinion No. 942 / 2018 Engl. only EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) ALBANIA OPINION ON DRAFT CONSTITUTIONAL AMENDMENTS ENABLING THE VETTING OF POLITICIANS Adopted by the Venice Commission, at its 117th Plenary Session (Venice, 14-15 December 2018) on the basis of comments by Ms Veronika BILKOVA (Member, Czech Republic) Mr Jørgen Steen SØRENSEN (Member, Denmark) Mr Oliver KASK (Member, Estonia) Mr James HAMILTON (Former Member, Expert, Ireland) Ms Hanna SUCHOCKA (Honorary President of the Venice, Commission, Former Member, Poland) This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int CDL-AD(2018)034 - 2 - Table of Contents I. Introduction ................................................................................................................... 3 II. Background ................................................................................................................... 3 III. Legal and constitutional framework. On-going reforms .................................................. 5 IV. International Standards ............................................................................................. 6 1. The right to vote and to be elected ............................................................................ 7 2. Exclusion of offenders from parliament. Key principles .............................................. 8 3. The right to have access to public service ................................................................. 9 4. Integrity checking and vetting procedures ................................................................ 10 V. Analysis ....................................................................................................................... 11 1. Restriction of the rights to be elected and to have access to public service ............. 12 a. Purpose of the proposed constitutional amendments ........................................ 12 b. Legality and proportionality of the proposed measures ...................................... 12 1. Subjects of the vetting .................................................................................... 12 2. Vetting grounds .............................................................................................. 13 3. Timeframe for the vetting. Length of the restriction. ....................................... 17 2. Implementation scheme .......................................................................................... 17 3. Added value of the proposed constitutional amendments ........................................ 18 VI. Conclusions ............................................................................................................. 19 - 3 - CDL-AD(2018)034 I. Introduction 1. By a letter dated 2 October 2018, the Speaker of the Parliament of Albania, Mr Gramoz Ruçi requested the opinion of the Venice Commission on the draft law on some addenda and amendments to Law No. 8417, dated 21.10.1998, the Constitution of the Republic of Albania (Constitutional amendments on vetting process, including the assessment of relations of the senior public officials with organized crime), that had been submitted to the Parliament by the joint initiative of the parliamentary groups of the Democratic Party and the Socialist Movement for Integration (hereinafter “the draft law”; see CDL-REF(2018)057 and CDL- REF(2016)064). 2. The Venice Commission appointed Mrs Veronika Bílková, vice-President of the Venice Commission, Mr Oliver Kask, Mr Jørgen Steen Sørensen and Ms Hanna Suchocka, Honorary President of the Venice Commission, to act as rapporteurs for this opinion. Mr James Hamilton, former member of the Venice Commission, was appointed as legal expert. 3. A delegation of the Venice Commission visited Tirana on 19-20 November 2018. The Venice Commission would like to express its gratitude to the Albanian authorities for the excellent organization of the visit and the hospitality shown. 4. The present opinion is based on the English translation of the proposed constitutional amendments provided by the Albanian authorities. The analysis also takes into account the written Observations of the Socialist Group in the Albanian Parliament on the Draft Law as well as a written “Position on the amendment and the mechanism of application”1 by the Democratic Party Parliamentary Group, as authors of the proposed amendments, documents provided to the rapporteurs following their visit to Albania. The questions posed by the Speaker in the request letter will not be addressed separately but as part of the consideration of the draft text. 5. The present Opinion was examined at the joined meeting of the Sub-Commissions on Democratic Institutions and on the Mediterranean Basin on 13 December 2018 and was subsequently adopted by the Venice Commission at its 117th Plenary Session (Venice, 14-15 December 2018). II. Background 6. On 7 September 2018, the parliamentary groups of the Democratic Party and the Socialist Movement for Integration submitted Draft constitutional amendments on vetting process, including the assessment of relations of the senior public officials with organized crime. The draft would amend three provisions of the Constitution of the Republic of Albania, namely Articles 45, 176 and 179. 7. In Article 45, the first sentence of paragraph 3 stipulating that “Exempted from the right to be elected shall be the citizens being sentenced to imprisonment upon a formally and substantially final decision, in connection with the commission of a crime, under the rules set out in a law being approved by three fifth of all the members of the Parliament” would be revised to read as follows: “The nationals who are sentenced by imprisonment based on a final judgment for the commission of a crime or nationals who have contacts with persons involved in the organized crime, according to the rules established by a law adopted with three fifth of all members of the Parliament, shall be exempted from the right to be elected”. 1 “Stance of the Democratic Party Parliamentary Group on the constitutional amendments on vetting in politics”, hereinafter “Position of the authors of the draft law” CDL-AD(2018)034 - 4 - 8. The effect of this amendment, therefore, would be to add to the category of persons who are prevented from being candidates for Parliament or other elective positions those nationals who “have contacts with persons involved in the organized crime”. 9. Article 176 would be complemented by a new section on “Mechanism of Guaranteeing the Integrity of Public Officials”. The section encompasses two provisions: new Article 176/1 and new Article 176/2. 10. Article 176/1 defines the purpose of the control of integrity, which is that of “protecting and guaranteeing the democratic proper functioning of the Parliament, local governance bodies, constitutional or statutory bodies from the influence or participation in policy making and/or decision-making of senior officials, who have contacts with the persons involved in the organized crime”. It also stipulates that the integrity control shall be carried out based on the principles of due process and the respect for fundamental rights. 11. Article 176/2 gives a list of individuals to be subject to the integrity control. Those include: members of the Parliament, mayors and every director or member of the institutions established by the constitution or 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. The provision also sets the rules for the integrity control. Under these rules, individuals subject to the control would need to submit a declaration, serving for identifying whether they have contacts with persons involved in organized crime. The integrity control is to be based on this background declaration and other evidence, including decisions of the Albanian or foreign courts. The background declaration can be used only in this process and not for purposes of criminal prosecution. 12. If such contacts are established, or the subject does not submit in due time the background declaration, or there are “attempts to make inaccurate declarations” or to hide contacts with organized crime, the presumption shall apply in favour of the measure of prohibition to be elected or appointed in public office, termination of the term of office or dismissal from duty. The individual then has the burden “to prove the opposite.” Finally, where the subject does not justify the lawful ownership of his/her property “according to the decisions of the responsible constitutional body”, a prohibition on election or appointment or termination of the term of office or dismissal is also to apply. 13. Article 179 would be complemented by a new Article 179/c, providing for the term of office of officials elected or appointed in constitutional and statutory bodies before the entry into force of the law to terminate if it is found that they are “involved in the circle of subjects who have contact with persons involved in organised crime”. 14. The proposal is silent as to who would be responsible for carrying out the vetting and in particular whether it would be a judicial body. However, during the visit of the Venice Delegation to Albania, the supporters of the proposal made it clear that it was their intention to provide a mechanism for politicians and officeholders corresponding to the existing vetting process which is
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