Monitoring Report Albania in the Stabilisation and Association Process (1 October 2007 – 15 October 2008) Group of experts drafting the report:: Ditmir Bushati, Coordinator of the project Vasilika Hysi Niazi Jaho Ersida Sefa Gjergji Vurmo Etilda Saliu Edlira Papavangjeli Florian Xhafa Geron Kamberi This is the second consecutive year that Open Society Foundation for Albania (OSFA) undertakes the initiative to monitor the progress of Albania in its path towards European Integration process, trying to establish it as a regular yearly practice. Monitoring is based on the committement undertaken by Albania in the Stabilization and Association Process, covering priority issues for the relations with European Union. The monitoring process aims at having an effect on accomplishing priorities under the European Partnership and on increasing state structures’ accountability in way that ensures an open and transparent process for the groups of interest and the public in general. The monitoring process also aims at identifying in an independent way the problems and effective solutions thereof in the framework of commitments under the European integration process. Open Society Foundation for Albania 3 4 Table of contents Executive Summary 9 Observance of international law and human rights 12 Home affairs 16 Institutional framework and administrative capacities for managing the European integration process 19 1. Introduction 20 2. Democracy and the Rule of Law 23 2.2 Government 30 2.3 Electoral Reform 35 2.4 Functioning of Public Administration 37 2.5 Reform of the Justice System 41 2.5.1 Strengthening the independence of the judicial system 44 2.5.2 Appointment and career of judges 45 2.5.3 Overlap of the competences of the two inspectorates 47 2.5.4 Guaranteeing civil servant status for the judicial administration 48 2.5.5 Reorganisation of courts 49 2.5.6 Improving the enforcement service 50 2.5.7 Access to the justice system and transparency of judicial processes 50 5 2.5.8 The School of Magistrates and training 52 2.5.9 Witness protection 53 2.5.10 Juvenile justice 54 2.6 Fight against corruption 54 2.7 Decentralisation Reform 58 3. Human Rights and the Protection of Minorities 61 3.1 Observance of international law and human rights 61 3.2 Civil and political rights 62 3.3 Economic and social rights 70 3.4 Rights of minorities, cultural rights and the protection of minorities 80 4. Home affairs 86 4.1 Visa policy 86 4.2 Asylum 90 4.3 Migration 92 4.4 Readmission 93 4.5 Integrated Border Management 96 4.6 Personal Data Protection 99 4.7 Organised crime and illegal trafficking 101 4.8 Fight against drugs 104 4.9 Prevention of money laundering 105 4.10 Fight against terrorism 108 4.11 Police 109 5. Institutional Framework and Administrative Capacities for Managing The European Integration Process 112 5.1 The Inter-ministerial Integration Committee and the Technical Working Committee for the SAA Implementation 115 5.2 The Ministry of European Integration 117 5.2.1 Approximation of legislation 118 6 5.2.2 Coordination of Community assistance 120 5.2.3 Translation of legislation 122 5.2.4 Information and communication 123 5.3 European Integration Units 125 5.4 The Assembly 127 7 8 Executive Summary Democracy and the Rule of Law The Parliamentary life is sometimes characterised by a spirit of consensus that enabled the adoption of the National Pact for Justice, the adoption of a number of important laws and the receipt of the invitation to join NATO. The Assembly adopted some constitutional changes that relate to changes of the election system, the manner of election of the President of the Republic, the determination of a five year term of office for the General Prosecutor, the motion of confidence and motion of no confidence in the Prime Minister as well as the repeal of articles regulating the functioning of the Central Elections Commission. There was no process of consultation with the local or international expertise before these constitutional changes were made, which ultimately affected the transparency and quality of the process. The new electoral system, a proportional regional system, approved with the consensus of the DP and the SP was contested by their ally parties, which argued that this system was inappropriate for Albania as it favours the two main political parties and damages the interests of other parties. Despite promises that the Electoral Code would be adopted first within the month of July, and then within the month of September 2008, a first draft of this document has not been disclosed by the Election Reform Commission and the elections’ infrastructure is not in place yet. 9 The tragedy of Gërdec, investigations on the road Durrës-Kukës, the political ties and the suspicions over the activity of the Serbian Bosnian businessman Damir Fazlic, the justice reform and especially the draft law on the Prosecutor’s Office and that on the judicial administration were at the centre of a harsh parliamentary debate, which from time to time did not lack offending language. The parliamentary life marked the first public clash between the parliamentary majority and the President of the Republic, Mr. Bamir Topi, when the Assembly first rejected the consideration of the five decrees of the President appointing five judges to the High Court and then rejected all candidates en bloc. The approach of the Government vis-à-vis the independent institutions continues to be one of conflict and having control tendencies. Important initiatives related to the functioning of the General Prosecutor’s Office, the Internal Control Service, the judicial administration, advocacy, notaries, the administrative court were undertaken in a unilateral way by the Government. The common denominator of this process is the fact that the groups of interest and the international assistance mission were either not involved in the process of discussions of these draft laws or even when they were involved at the beginning they were later on avoided because of the criticism they raised. The Government adopted the National Strategy for Development and Integration (NSDI) in March 2008. This is followed by the preparation and adoption of 22 sector strategies and 13 cross sector strategies. The NSDI deals with the process of European integration as a separate priority, which makes the harmonisation of the European integration priorities with the agenda of economic and social development of Albania difficult. The Public Administration Department (DoPA) continues to have a weak role in protecting and promoting the principles of civil service. Professional career development and especially recruitment and job promotion do not follow objective criteria and merit based criteria, which would ultimately make it possible to achieve an accountable and efficient civil service; they are rather based on politics and nepotism. The appointment of the new chairman and of the new members of the Civil Service Commission (CSC) was followed by political interventions and debates, which affected the independence of this institution. Further work of the 10 CSC was followed by delays because the Commission as reconstituted with its new members decided to rehear around 150 civil servants, who had been removed from office. While no measure has been taken to identify the individual responsibilities for damages to the state budget as a consequence of failure to apply final court decisions. The justice system in Albania continues to undergo continuous changes, which in certain cases constitute and expression of the good willingness of the institutions, but often reflect a tendency of control by the executive on the judiciary and the prosecutor’s office. The lack of a clear vision for addressing the problems has resulted in lack of support of the groups of interest for many of the initiatives undertaken and in the fact that these acts are challenged at the Constitutional Court. A consensual political climate is indispensible for accomplishing sustainable reforms. The process of law drafting in connection with laws in the area of justice and the way this process is managed continue to be problematic. The fragmentarisation of laws and the confusion created because of drafting several laws at the same time has resulted in some of these laws being incomplete and contradictory. Nevertheless, an increased activism of the High Council of Justice, the associations of judges and prosecutors, notaries and advocates is noted; these actors have contributed to the improvement of the quality of legal initiatives in the area of justice. An improvement in the index of perception of the corruption level according to Transparency International was marked in 2008. There is a willingness of the two main political parties in the country (the DP and the SP) to reduce the list of officials who have immunity. The 2007-2013 Anti-corruption Strategy adopted by the Council of Ministers creates a link to the NSDI and identifies the anticorruption perception of Transparency International and the World Bank “Doing Business” Report as measuring indicators. Nevertheless, sections such as the Licensing Regulatory Reform or the Public Service Reform lack the legal and institutional instruments that would make the achievement of objectives possible. According to the High State Control, the corruptive practices continue to dominate the area of public procurement. Violations of the new law on public procurement have been found in 60% of the cases and the damage caused to the operational 11 and capital expenses is calculated at Lekë 454 million of which 93% of the damage is created during the implementation of the procurement procedures. Progress was marked with regard to the decentralisation reform. Changes in the fiscal policy included the transfer of responsibilities over local taxes, water pipes and sewers to the local government, the adoption of the law on loans to the local governance, which provides for the financing with a view to improve local services.