Register of Magistrates, Proposal of Civil Society Action Plan OGP, Component Open Government for Access to Justice and Digital Governance

The Register of Magistrates is an unfulfilled legal obligation, and the civil society proposes to consider it as a Government commitment in the 2021-2022 Action Plan.

AIS as an organization, draws attention to the institutional delays for the creation of the Register of Magistrates for Prosecutors and Judges. This register is both a legal obligation and a set standard for the Justice Reform. AIS has proposed to the Intergovernmental Technical Committee tasked for drafting the Open Government Partnership (OGP) 2021-2022 Action Plan, to commit and include in this plan the implementation of such as Register. The direct beneficiaries of this plan are two key institutions of the Justice System, the High Judicial Council and the High Prosecutorial Council. Governments have the obligation to draft the Action Plan for the Open Government Partnerships in cooperation with the civil society. Below the request proposal.

Find HERE the full proposal

Access to Justice – A public register for the magistrates, created by a Non-Governmental Organisation

Access to Information Database is a data mine into the justice system. A passport of information, documents, and data is created for each individual that is promoted and qualified in the vetting process, enabling public monitoring of individual integrity. This data is restructured, setting a model for the Magistrates’ Register. The Register represents a legal obligation for the new justice institutions, not yet fulfilled http://aksesdrejtesi.al/dokumenta/1600325262Akese%20Info%20Drejt%C3%ABsi%20Raporti.pdf . Access to Justice contains data on CVs, public declarations, qualifications, scientific research, promotions, disciplinary measures, and asset declarations for each individual judge and prosecutor. Access to Justice enables also access by search filters  http://aksesdrejtesi.al/searchform for each document of the new justice systems, such as acts, decisions, official records, reports, etc. AIS, the organization promoting Open Data for Albania has created and maintains this data mine. On 1 October, the vetting process has fully confirmed in office only 76 judges, prosecutors and individuals of the justice system. 123 judges and prosecutors have been dismissed. For 48, the process has been terminated. A decision was made by the Special Qualification Committee for 28 others, who are pending a decision from the Public Commissioner or the Special College of Appeals. A passport of information and documents is created for each judge and prosecutor who has fully passed the vetting process on our Access to Justice website. This passport enables public access and monitoring over the integrity of promoted individuals. This includes:
  1. Vitore Tusha Judge http://aksesdrejtesi.al/profil/21
  2. Fatjona Memcaj Prosecutor http://aksesdrejtesi.al/profil/31
  3. Manjola Xhaxho Judge http://aksesdrejtesi.al/profil/91
  4. Marcela Shehu Judge http://aksesdrejtesi.al/profil/19
  5. Anila Leka Prosecutor http://aksesdrejtesi.al/profil/62
  6. Dritan Prenci Prosecutor http://aksesdrejtesi.al/profil/50
  7. Brikena Ukperaj Judge http://aksesdrejtesi.al/profil/15
  8. Vate Staka  Prosecutor http://aksesdrejtesi.al/profil/9
  9. Arta Marku Prosecutor http://aksesdrejtesi.al/profil/30
  10. Kostaq Beluri Prosecutor http://aksesdrejtesi.al/profil/5
  11. Nertina Kosova Judge http://aksesdrejtesi.al/profil/57
  12. Ardian Dvorani Judge http://aksesdrejtesi.al/profil/40
  13. Medi Bici Judge http://aksesdrejtesi.al/profil/20
  14. Brunilda Kadi Judge http://aksesdrejtesi.al/profil/16
  15. Dritan Hallunaj Judge http://aksesdrejtesi.al/profil/18
  16. Gentjan Medja Judge http://aksesdrejtesi.al/profil/114
  17. Adnan Xholi Prosecutor http://aksesdrejtesi.al/profil/32
  18. Bujar Sheshi Prosecutor http://aksesdrejtesi.al/profil/1
  19. Sokol Stojani  Prosecutor http://aksesdrejtesi.al/profil/60
  20. Arnisa Kellici Candidate Judge
  21.  Miranda Nakaj Legal Assistant  http://aksesdrejtesi.al/profil/124
  22. Arta Vorpsi Legal Advisor http://aksesdrejtesi.al/profil/39
  23. Enton Dhimitri Judge http://aksesdrejtesi.al/profil/79
  24. Fiona Papajorgji Member of the CC http://aksesdrejtesi.al/profil/28
  25. Emona Muci Judge http://aksesdrejtesi.al/profil/78
  26. Alma Kolgjoka Judge http://aksesdrejtesi.al/profil/77
  27. Arben Kraja Prosecutor http://aksesdrejtesi.al/profil/46
  28. Eloida Goxhi Prosecutor http://aksesdrejtesi.al/profil/59
  29. Alfred Progonati Prosecutor http://aksesdrejtesi.al/profil/49
  30. Gentjan Jahjolli Legal Advisor
  31. Adrian Shega Former Legal Advisor http://aksesdrejtesi.al/profil/125
  32. Alma Muca Prosecutor http://aksesdrejtesi.al/profil/24
  33. Altin Binaj Prosecutor http://aksesdrejtesi.al/profil/25
  34. Eriol Roshi Judge http://aksesdrejtesi.al/profil/80
  35. Elsa Toska Member of the CC http://aksesdrejtesi.al/profil/22
  36. Ornela Naqellari Judge http://aksesdrejtesi.al/profil/95
  37. Albana Boksi Judge http://aksesdrejtesi.al/profil/56
  38. Esmeralda Ceka Judge http://aksesdrejtesi.al/profil/87
  39. Dhorina Theodhori Prosecutor http://aksesdrejtesi.al/profil/33
  40. Rexhep Bekteshi Judge http://aksesdrejtesi.al/profil/97
  41. Elidiana Kasa Prosecutor http://aksesdrejtesi.al/profil/58
  42. Sotir Kllapi Prosecutor http://aksesdrejtesi.al/profil/60
  43. Sokol Binaj Judge http://aksesdrejtesi.al/profil/65
  44. Edvin Kondili Prosecutor http://aksesdrejtesi.al/profil/35
  45. Artan Shtrungza Prosecutor
  46. Ened Nakuci Prosecutor http://aksesdrejtesi.al/profil/36
  47. Enkeleda Millonai Prosecutor http://aksesdrejtesi.al/profil/37
  48. Vladimir Mara Prosecutor http://aksesdrejtesi.al/profil/51
  49. Margarita Buhali Judge http://aksesdrejtesi.al/profil/94
  50. Esmeralda Keshi (Cami) Prosecutor http://aksesdrejtesi.al/profil/4
  51. Klodiana Veizi Judge http://aksesdrejtesi.al/profil/89
  52. Saida Dollani Judge http://aksesdrejtesi.al/profil/63
  53. Behar Dibra Prosecutor http://aksesdrejtesi.al/profil/34
  54. Zeqir Hoda Prosecutor http://aksesdrejtesi.al/profil/61
  55. Elida Kackini Prosecutor http://aksesdrejtesi.al/profil/44
  56. Olsian Cela Prosecutor http://aksesdrejtesi.al/profil/23
  57. Maela Alicanaj Legal Advisor
  58. Altin Dumani Prosecutor http://aksesdrejtesi.al/profil/45
  59. Enkel Peza (legal assistant, candidate magistrate)
  60. Sokol Ibi Judge http://aksesdrejtesi.al/profil/102
  61. Sonila Muhametaj (Domi) Prosecutor http://aksesdrejtesi.al/profil/120
  62. Artur Kalaja Judge http://aksesdrejtesi.al/profil/105
  63. Daniela Shirka Judge http://aksesdrejtesi.al/profil/52
  64. Iliriana Olldashi Judge http://aksesdrejtesi.al/profil/53
  65. Doloreza Musabelliu Prosecutor http://aksesdrejtesi.al/profil/115
  66. Klodian Kurushi Judge http://aksesdrejtesi.al/profil/55
  67. Genti Xholi Prosecutor http://aksesdrejtesi.al/profil/121
  68. Sander Simoni Judge http://aksesdrejtesi.al/profil/47
  69. Miliana Muca Judge http://aksesdrejtesi.al/profil/54
  70. Thoma Jano Prosecutor http://aksesdrejtesi.al/profil/54
  71. Asim Vokshi Judge http://aksesdrejtesi.al/profil/73
  72. Gjon Fusha Prosecutor http://aksesdrejtesi.al/profil/129
  73. Edlira Petri Judge http://aksesdrejtesi.al/profil/127
  74. Ilir Toska Judge http://aksesdrejtesi.al/profil/17
  75. Dhimiter Lara Judge http://aksesdrejtesi.al/profil/64
  76. Manjola Kajana Prosecutor http://aksesdrejtesi.al/profil/107

The reconstruction programme after the earthquake of November 26th, tenders and contracts

The Albanian Government continued its tender procedures during March – June for the reconstruction and development of buildings and areas damaged by the November 26th 2019 earthquake. So far, there are two authorities involved: the Albanian Development Fund and the Municipality of Tirana. Open Procurement Albania is preparing passports for every tender and contract procedure related to this programme. So far, several contracts are announced by the Albanian Government. The procedure selected for tenders is the restricted (not the open) procedure, and the deadline for expression of interest in each case is no longer than 10 calendar days. The Procedure and Deadline are predetermined by Normative Act No. 9, dated 16.12.2019 on Dealing with the Consequences of the Natural Disaster, a normative act equivalent to a law. This is done by avoiding and bypassing the regular application of the common rules and legislation on Public Procurement. The same procedure and the same deadline were applied even in the case of contracts exceeding the High Monetary Limit, which requiring international competition and call. The deadline for expression of interest by law in the case of the limited procedure is at least 20 working days for each phase, while the limited procedure is used only in specific cases. The application of rules and procedures pre-determined by a Normative Act through very short deadlines and the Limited Procedure corresponds with situations exposed to higher risks related to competition and bid efficiency. Below are the tenders announced so far (June 2019)

 

List of Tenders Reconstruction Program from the Albanian Development Fund includes 18 http://openprocurement.al/sq/albaniandf/list/keyword/Programi%20i%20Rindertimit?

These 18 tenders of the Albanian Development Fund have a total value limit of 14 281 395 708 (fourteen billion and two hundred and eighty-one million, and three hundred and ninety-five thousand and seven hundred and eight) Lekë. This is equal approximately to 116.1 million euros. Tenders are listed as follows:

  1. Reconstruction of individual residences and reconstruction of public infrastructure and any other interventions serving the reconstruction of these homes. For a fund of 6 186 125 775 (six billion and one hundred and eighty-six million and one hundred and twenty-five thousand and seven hundred and seventy-five) Lekë. The budget projected for this year (2020) is 5,49 billion lekë. The budget has been made available by the Albanian Government’s (not donors) budget. The scope of the Framework agreement includes the reconstruction of individual homes, construction and reconstruction of public infrastructure, and any other intervention serving these homes on the territory of the municipalities of Durres, Kamza, Kavaja, Rrogozhina, Kruja, Kurbin, Lezha, Mirdita, Shijak, and Vora. This tender was originally announced on March 10th, 2020, with a deadline for submission of expression of interest of only 9 days. The tender failed and was re-announced on April 28th, 2020. The Albanian Development Fund has not yet announced who was qualified, has not identified the winning bid, and has not announced the signing of any contract as part of the Framework Agreement for this tender Link http://openprocurement.al/sq/albaniandf/view/id/293
  2. The next tender is the Construction and Reconstruction of public infrastructure in the new areas announced for Mandatory Development. For a projected value of up to 3 726 934 577 (three billion and seven hundred and twenty-six million and nine hundred and thirty-four thousand and five hundred and seventy-seven) Lekë, or approximately 30.3 million euros. The budget allocated for this tender for 2020 is 745 389 915 million lekë. The scope of the framework agreement consists of the infrastructure of these zones, and utility, and urban infrastructure. The public infrastructure means the construction sites in areas assigned for free development and available for construction, the transport infrastructure, water supply and sewage infrastructure, energy supply infrastructure, community infrastructure of squares, parks, sports playgrounds, and public lighting on the territory of the municipalities of Durres, Kamza, Kavaja, Rrogozhina, Kruja, Kurbin, Lezha, Mirdita, Shijak, and Vora. This tender was announced on April 28th, and there is no yet any information about its progress Link http://openprocurement.al/sq/albaniandf/view/id/323
  3. Equally, another lot procedure is also announced on March 17th for a total fund limit of 4,175,217,853 (four billion and node hundred and seventy-five million and two hundred and seventeen thousand and eight hundred and fifty-three) lekë without VAT. The budget available for 2020 is 1,043,804,463 lekë without VAT. Lots are as follows:
  4. Lot 1. The reconstruction of educational facilities in the areas affected by the earthquake with a funding source includes the Reconstruction Fund, Budget approved by decision no. 212, dated 11. 03. 2020 on the Use of the Reconstruction Fund to fund reconstruction of educational facilities. The value without VAT is 511 405 370 lekë. http://openprocurement.al/sq/albaniandf/vieë/id/297
  5. Lot 2. Reconstruction of schools, Municipality of Kruja, for a value of 490 413 615 lekë without VAT. Lot 2 includes the 9-year elementary school “Selman Daci”, the 9-year elementary school and kindergarten “Ramazan Jangozi”, the 9-year elementary school and kindergarten “Kastriot Derveni”, the 9-year elementary school Gjon Luka, Luz. The total construction surface of all these buildings is approximately 10 691 m2. The call was announced on 17 March. The submission deadline is 27 March. LINK http://openprocurement.al/sq/albaniandf/vieë/id/298
  6. Lot 3. Reconstruction of educational facilities, Municipality of Durres for a value of 845 723 696 lekë without VAT. The educational facilities included in Lot 3 are: the 9-year elementary school and the kindergarten “Bedrie Beziqi”, kindergarten “Met Hasa”, the 9-year elementary school “Neim Babameto”, the 9-year elementary school and kindergarten “Hasan Koci”, all with a total construction surface of approximately 18 438 m2. Link http://openprocurement.al/sq/albaniandf/vieë/id/299
  7. Lot 4. The reconstruction of educational facilities, Durres Municipality 2, for a value of 850 692 969 lekë. The educational facilities included in lot 4 are Shaqe Mazreku School, the joint High School Rexhep Mesini, the 9-year elementary school and kindergarten Adem Gjeli, the 9-year elementary school Xhelal Shtufi Shkafanaj, the Njazi Mastori 2+3, school and kindergarten, the 9-year elementary school Vellezrit Haradinaj, all with a total construction surface of approximately 18 545 m2. LINK http://openprocurement.al/sq/albaniandf/vieë/id/300
  8. Lot 5. The reconstruction of educational facilities in Kavaja and Rrogozhina Municipality for a value 414 766 205 lekë without VAT. The educational facilities included in lot 5 are the vocational school Charles Teleford Erickson, the 9-year elementary Shtodher, the vocational school 26 Marsi, Golem dormitory, the 9-year elementary school of Gosa, the elementary school and the kindergarten of Vila Bashtove, all with a construction surface of approximately 9041 m2. http://openprocurement.al/sq/albaniandf/vieë/id/301
  9. Lot 6. The reconstruction of educational facilities in Kamza municipality for a value of 621 757 340 lekë without VAT. The educational facilities included in lot 6 are the 9-year elementary school Halil Coka, the secondary school Sulejman Elezi, the kindergarten Lidhja e Prizrenit Paskuqan, the kindergarten Halit Coka, all with a construction surface of approximately 13 555 m2. Link http://openprocurement.al/sq/albaniandf/vieë/id/302
  10. Lot 7. The reconstruction of educational facilities in the municipality of Shijak for a value of 440 458 658 lekë without VAT. The educational facilities included in lot 7 are: the 9-year elementary school Ramazan Subashi, the 9-year elementary school Ahmetaq, the kindergarten in Kodër Berxullë, the kindergarten in Marqinet, the 9 year elementary school Lidhja e Prizrenit, the general secondary school 16 Shtatori, kindergarten no. 1, Vlashaj kindergarten, the secondary school Kajo Karafili, all with a construction surface of approximately 9 602 m2. http://openprocurement.al/sq/albaniandf/view/id/303
  11. The other tenders consist of monitoring the execution of the key contracts and lots. Link http://openprocurement.al/sq/albaniandf/list/keyword/Programi%20i%20Rindertimit?

 

Another institution involved in the Reconstruction Programme tenders is the main Municipality in the country, i.e. the Municipality of Tirana. This municipality is the only one, which, using funds from the central budget, will manage the reconstruction tenders on its own territory on its own.

So far, this municipality has announced several tenders Link: http://openprocurement.al/sq/tender/list/keyword/Programi%20i%20Rindertimit?

But so far, the highest-value tender remains the one for the reconstruction of individual homes, within and outside the new areas designated for development, construction and reconstruction of public infrastructure, as well as any other interventions serving the reconstruction of individual homes outside the new development areas.

This tender has a fund limit of 2 123 598 655 leks (two billion and one hundred and twenty-three million and five hundred and ninety-eight thousand and six hundred and fifty-five) lekë or about 17.26 million euros. The tender was announced in March with a smaller fund limit, but it failed, as none of the bids submitted did not comply with the criteria defined in the tender documents. The tender was re-announced in May with a higher value, and after several changes to the budget allocated to Tirana Municipality by a decision of the Council of Ministers. Even in this tender, the applied procedure is the limited procedure. Several areas are so far designated on Tirana’s territory for development after the earthquake, including 5 Maji, Autotraktoret, Kombinat, Agricultural University, Baldushk, Vaqarr, and Zall Herr. All the decisions of the Council of Ministers designating these areas are listed in our tender passports, and the decisions contain the coordinates and satellite photos of the respective area. http://openprocurement.al/sq/tender/vieë/id/32944

Tirana municipality has also announced tenders for designing several schools to be reconstructed following the earthquake  http://openprocurement.al/sq/tender/list/keyëord/Programi%20i%20Rindertimit?

The Albanian government’s reconstruction programme, designed in January – February 2020, following the earthquake and emergency situation for natural disasters. The Albanian government, through its Albanian Reconstruction Committee, has estimated that the total need for reconstruction is 1,076.15 billion euros (132.4 billion Lek), including all the sectors for interventions in 11 municipalities in the country.

This amount will be used for reconstruction through a programme that the Albanian government has baptized as the Reconstruction Programme. Monitoring and public information on this process is an important moment that relates to the efficiency, management, and trust of the citizens in the process.

Overview of the efforts to demolish National Theatre building

The discussion surrounding the National Theatre began in March 2018 as the Prime Minister Rama presented a construction project for a new theatre. At 3.000 m², the new National Theatre project occupied less than half of the original area, however. The rest was intended for the building of high-rises and a shopping centre. Rama argued that renovating the 80-year old theatre building was “impossible”, and instead several million euros of public funds had to be spent on a Public Private Partnership (PP).

The building project for the new National Theatre should have been implemented via a special law adopted in the Parliament where Rama holds an absolute majority. The so-called “Fusha Law” (named after the company Fusha shpk, which was to receive the contract), revealed serious shortcomings, such as the awarding of state property without a tender. Once people learnt about the news of a planned special law, artists and activists established the “Alliance for the Protection of the Theatre”, which was also joined by many prominent public figures such as historians, academics, and journalists. They organised protests, launched a petition, approached national and international organisations, and took legal action. For a period spanning 27 months, the Alliance protected the theatre against demolition.

In July 2018, the European Commission, too, had requested that the Albanian Government clarify the reasons for adopting this special law. One of the letters´s 15 questions was whether the special law is compatible with Albania´s obligations under the Stabilisation and Association Process. Thorsten Frei (Member of Parliament), at that time rapporteur for Albania of the CDU/CSU Parliamentary Group in the Bundestag´s Foreign Affairs Committee, also expressed doubts during an interview:  “The special law for the National Theatre is highly ambiguous when it comes to how it complies with EU legislation and the Albanian constitution. As I see it, President Meta was right to send the law back to Parliament […] The case of the National Theatre will clearly demonstrate how serious Edi Rama is about EU accession”.

On 25 July 2019, President Ilir Meta lodged a complaint with the Constitutional Court, requesting that the special law for the National Theatre be declared unconstitutional. Given that the court was not operational at that point, this complaint was only submitted for examination in late 2019. On 30 December 2019, the Constitutional Court called on the Parliament, the Council of Ministers, the Ministry of Finance, the Ministry of Culture, and the Municipality of Tirana to put forward their arguments for the special law. Yet, the case had not even been brought before court.

In February 2020, the Municipality of Tirana announced that the project for constructing a new theatre building had fallen through. Fusha shpk was not in a position to implement the project at short notice and in line with the requirements.

Following a long silence on the fate of the theatre, in May 2020, the Albanian Government resolved to assign the land, on which the National Theatre stood, to the Municipality of Tirana in order to make a decision about demolition. President Meta lodged another complaint with the Constitutional Court against this decision. Nevertheless, on the evening of 14 May, the Tirana City Council secretly approved the demolition of Albania´s National Theatre.

Decision No. 50 adopted by the City Council on 14 May 2020, states that the building is to be demolished based on the expertise of the Institute for Construction. The report was drawn up only on the previous day, on 13 May 2020, and attests that the building is not suitable for carrying out activities and that, regardless of any renovations, it cannot be made safe. The City Council resolution also authorised the Institute of Territorial Defence to evacuate, enter and then demolish the building. The resolution did not cite a date for demolition.

There was no legal basis for the Municipal Council´s vote. On the one hand, the Municipal Council can only take a decision on something that belongs to the Municipality. In this case, although it owns the land on which the theatre stands, the same cannot be said for the building itself. While the expertise document is an administrative-legal act that can only be subjected to judicial review, on the other. A political institution such as the Municipal Council of Tirana does not have any jurisdiction over a legal act put forward by a central government organisation.

Furthermore, it is unclear how the vote took place. No public announcement for the Municipal Council meeting was made public, as prescribed by law.

Finally, a decision by the Municipal Council only enters into force ten days following the announcement, as opposed to with immediate effect.

The Albanian Ombudsman has also initiated an administrative investigation into the transfer of the National Theatre´s land ownership to the Municipality of Tirana. The investigation aims to find out whether “actions of state institutions violated against the rights of citizens”.

President Meta referred to the decision taken by the Government and Municipality of Tirana to demolish the National Theatre as “a well-structured criminal activity”; the government´s actions and decisions have been “unbelievable”. It is an “unforgivable constitutional, legal and moral crime”, especially at a time when the legality of this demolition was still subject to examination by the Constitutional Court.

The Democratic Party (DP) had tirelessly opposed the demolition of the National Theatre and called for it to be fully renovated while respecting its historical and cultural value. Only a few days ago, the Chairman of the DP, Lulzim Basha, described the theatre´s demolition as a “red line” and declared that: “Any act of demolishing the theatre is an act of war, not only against art and the artists, but also against citizens themselves […]”

In the wake of the demolition, Basha, accompanied by the leader of the socialist movement for integration (LSI), Monika Kryemadhi, and other representatives of the opposition, blocked the boulevard “Dëshmorët e Kombit” in the centre of the capital.

At the international level, the main criticism was a lack of understanding about the way in which it was demolished in the midst of the Covid-19 pandemic, along with the absence of dialogue. In a statement on Facebook, the German Ambassador to Tirana said:

The hurried demolition of the National Theatre in Tirana today at the crack of dawn is difficult for me to understand in the form in which we witnessed it. Especially during the current state of emergency, dialogue between government and civil society as well as transparent governance are extremely important.”

Whereas the Mayor of Tirana, Erion Veliaj, during his first public appearance since the demolition, called on artists to work together to build a new theatre. He described the decision to demolish the building “as the most difficult in his life”, but added that “it was the right one”. […] „I will support you to create a better project. In the end, the product will prevail”, said Veliaj while adding that: “The old theatre is gone, now is the time to come together.”

Veliaj explained that the Institute for Construction had classified the building as “dangerous”, and that it was not a cultural monument nor was it on the list of protected cultural heritage. Previously, the Prime Minister, Edi Rama, had incessantly preached about how the building was an “old box” that needed to be demolished to build a new, more modern theatre building.

Sixteen civil society organisations have condemned the Albanian Government´s demolition of the National Theatre, and the violence exercised against protesters during the clearance. In a press release, they warned that demolishing the theatre during this period harbours the greater danger of suppressing freedom of thought and civic resistance. They called on local and international institutions and embassies to react against the Albanian government´s authoritarian tendencies.

The organisations added that democracy, fundamental human rights and the existence of civil society have never been in greater danger in Albania.

According to media reports, the Corruption Prosecutor´s Office (SPAK) initiated proceedings following a charge made by the “Alliance for the Protection of the National Theatre” on 6 May. The Alliance accuses Mayor Veliaj of abuse of power and corruption. The Alliance has also sued three civil engineers from the Institute that drew up the expert report for demolition for abusing their authority. For instance, the Alliance declared that the expert report presented by the engineers was based on forged documents. It is said that three of the five engineers who drew up the report, had never personally examined the National Theatre building.

The measures taken by the Albanian Government occur at what is a seemingly tactically astute time for them. Albania has weathered the Covid-19 pandemic, and almost all restrictions have now been lifted or considerably relaxed. But the emergency situation whose restrictions include freedom of assembly, will remain in force until 23 June. That may be why the government went ahead with demolishing the theatre now, as they may have expected to encounter less protests as well as the fact that people have other problems owing to the economic and social damage caused by Covid-19. 

I.

PRESIDENT OF REPUBLIC COMPLAINTS IN CONTITUTIONAL COURT

In the request addressed to the Constitutional Court dated 24.07.2019, the President of the Republic, in his capacity as the requesting party in the Constitutional Court trial, has requested the review of the constitutionality of law no. 37/2018 “On determining the special procedure for negotiating and concluding the contract with the object “Design and implementation of the urban project and the new building of the National Theatre ”, approved by the Assembly on 05.07.2018 and on 20.09.2018, as a legal act which:

• does not comply with basic constitutional principles.

• is in direct conflict with the provisions of the Constitution of the Republic of Albania.

• severely impairs Albanian national identity and heritage.

• does not guarantee the protection of public property.

• violates the principle of legal certainty regarding the exercise of property rights over private property rights.

• is contrary to the current legal system, on which the Albanian society is based.

• conflicts with international acts to which the Republic of Albania adheres or ratifies.

• is in contradiction with the provisions of the Stabilization and Association Agreement.

• the provisions of this law contained discriminatory criteria that did not guarantee free competition and contradicted the application of the constitutional principles of “equality before the law” and “freedom of economic activity of citizens”, thus violating the functioning of the rule of law;

• seriously violated the constitutional principles of construction and functioning of local government bodies of “decentralization” and “local autonomy”, while at the same time contradicting the principle of separation and balance of powers.

• is in conflict with the constitutional jurisprudence established by the Constitutional Court, on the principles of functioning of local government bodies and the exercise of their powers in accordance with the principle of decentralization and local autonomy.

• presents significant shortcomings and uncertainties in terms of economic and financial benefits of the state, creating suitable ground for abuse of public property and violation of public interest.

At the same time the President of the Republic requested from the Constitutional Court the determination of a date as close as possible to the review of the request for suspension of the implementation of the law, as it was clearly and publicly evidenced, the interested parties in this process (the Municipality of Tirana, the Council of Ministers, the Ministry of Culture, the Ministry of Finance and the Economy), were continuing with the procedures in implementation of this unconstitutional law, which foresaw and resulted in the demolition of the building complex of the National Theatre.

The Constitutional Court through decision no. 4, dated 30 December 2019, “Notice on the transfer of the case for consideration in the plenary session and its continuation”, informed the President of the Republic that the College of the Constitutional Court on 24.12.2019, has decided to forward for review in the plenary session with open doors of the request of the President of the Republic. 

On 21 January 2020, the President of the Republic submitted additional arguments to the Constitutional Court that: “If the Theatre were to be demolished before the decision of the Constitutional Court, then the consequences would be irreparable. That fact must be taken into account.” In this letter, the President of the Republic, among others, informed the Constitutional Court that the concern about the continuation of the procedure, which is considered completely unconstitutional, was followed by many actors, including the Executive President of the Movement for the Protection of Cultural Heritage. Europa Nostra”, a movement that has called for the protection of the“ precious National Theatre ”, which has been nominated as part of the civil society campaign in Europe, for the protection of the most endangered sites for 2020, by making them available to the Court.

In the letter dated 30 December 2019, the Constitutional Court also informs the President of the Republic that the date of the hearing will be set at a second time, once the Constitutional Court has the necessary quorum to consider the request in plenary session, according to Article 31, point 1 of law no. 8577/2000 “On the organization and functioning of the Constitutional Court”, as amended.

On 14 May 2020 The President have submitted a second complaint to the Constitutional Court requesting for Repeal of Decision no. 377, dated 8.5.2020 of the Council of Ministers “On the transfer of ownership of the Municipality of Tirana, of property no. 1/241, titled “The National Theatre“, at the cadastral zone 8150, Tirana, as incompatible with the Constitution.

The Council of Ministers in this decision, in its very point 1, expresses the will that, with the transfer of ownership to the Municipality of Tirana, of the “National Theatre”, this municipality must continue the procedures for the demolition of Theatre buildings and construction of new buildings. According to the President “through this act, Albanians everywhere are today, are being ordered to lose a public property of high national interest. With its demolition, the cultural heritage and national identity embodied in these buildings are intended to disappear, and our shared collective memory to be lost.”

This decision of the Council of Ministers continues to carry the unconstitutional goal of infringing on publicly owned property that is closely linked to national cultural heritage and national identity.

Thus it is clear that, through the phrase in point 1 of this decision where it is quoted “with the purpose of constructing a contemporary building and with standards of the National Theatre“, accompanied by the phrase in point 2 that, “Tirana Municipality is prohibited to change the destination of property defined in point 1 of this decision ”, the purpose for the destruction of the current buildings of the National Theatre complex has been imposed and ordered by the Council of Ministers, while the Mayor of Tirana and the Municipal Council, remain only to enforce this political will of the Government and the Prime Minister.

In essence, even this act of the Council of Ministers, although referring to the selected form and procedure, is covered under the argument of a routine decision of transfer of ownership of a public property from the central government to the local government, in essence, contains the same constitutional issues and the same risk as the special law no. 37/2018, which is currently under review by the Constitutional Court.

Both of these acts – law no. 37/2018 and DCM no. 377/2020, clearly express the same political purpose: The demolition of existing buildings of the National Theatre, which would constitute the most serious violation of constitutional principles related to Albanian national identity and heritage, values protected by the Constitution of the Republic of Albania and international acts to which the Republic of Albania has acceded or ratified.

II

DECISION TO DEMOLISH NATITONAL THEATRE BUIDING BY MINICIPALITY COUNCIL OF TIRANA

The decision to demolish Albania’s National Theatre was approved in secret and was not on the agenda for the meeting of the Tirana Municipal Council.

Tirana Municipal Council member Fabian Topollaj who is the only one that represents opposition in the Municipality has leaked emails that showed the meeting to vote on the demolition of the National Theatre would take place on May 15, at noon.

However, the municipal council published the approval of the decision in the evening of May 14. This, despite the fact that there was no official notice that the council would meet and vote on May 14.

It remains unclear how this decision was taken, that is how the vote took place, if it ever really did, and why it happened 24 hours earlier than the official schedule. An administrative investigation is likely needed to shed light on such a high public interest issue.

According to Topollaj, the chronology of the events was as follows:

– In the morning of May 13, municipal council members were notified by email of an online meeting. Discussion of the National Theatre was not on the agenda of this meeting.

– In the morning of May 14, members were notified by email that, during the meeting, they would vote on the demolition of the National Theatre. The issue would not be discussed but members had to vote by email by May 15 at noon.

– Suddenly, and with no prior notice, in the evening of May 14, the press published the decision of the municipal council that approved the demolition of the National Theatre with 60 out of 62 possible votes for.

– Following the publication of this decision, the Tirana municipality notified municipal council members of an upcoming meeting that would take place on May 18, at 11 am, wherein the construction of a new National Theatre building will be discussed.

On Thursday evening, the Tirana Municipal Council secretly approved the demolition of the Albanian National Theatre. Decision number 50, dated 14 May 2020 states that the building will be demolished based on the expertise of the Institute of Construction. It also states that the Inspectorate of Territorial Protection has the right to surround, enter and then demolish the building. The decision gives no date for demolition but says it will notify the Municipality 24 hours before it enters the building.

The expertise document drafted by the Institute of Construction was drafted only one day before   on May 13, and states the building is not suitable for carrying out activities and that regardless of any renovations, it cannot be made safe.

The subsequent vote on its contents by the Municipal Council is not based in the law:

Firstly, the Municipal Council can only take a decision based on something that belongs to the Municipality. In this case, while the land the theatre sits on does indeed belong to them, the building itself does not. 

Secondly, the expertise document is an administrative-legal act that can only be subjected to judicial review. A political institution such as the Municipal Council of Tirana does not have any jurisdiction over a legal act put forward by a central government institution.

Thirdly, it is unclear how the vote took place. No public announcement for the Municipal Council meeting was made public, as required by the law.

Fourthly, the law and the Rules of Procedures of Municipal Council do not provide the voting of the members by e-mail.

III.

USE OF POLICE AND UNPROPORTIONAL FORCE

      Around 04:30 in the morning on Sunday, May 17-th, 2020 hundreds of police forces       surrounded the National Theatre building, forcibly removed dozens of citizens sitting in front      of the theatre, and cordoned off the area.

      The demolition operation started immediately, without any safety or technical condition       standards, using excavator bulldozers.

Armed with automatic weapons, riot gear and black ski masks, the Albanian police and Special Forces units moved under the cover of darkness in the early hours of Sunday – when the capital was sleeping – and stormed the premises of the National Theatre in Tirana, detaining a handful of artists and activists that had barricaded themselves in there.

The area surrounding the building was then cordoned and citizens were kept from entering through. 

The activists were forcibly put into police vans and detained, while a bulldozer moved in to turn the building into rubble. Dozens of citizens were detained and arrested for resistance, including opposition party ‘LSI’ leader Monika Kryemadhi and Albanian journalist Alfred Lela.

Tensions grew when more protesters gathered around the area guarded by police forces, chanting ‘”Down with Dictatorship” and calling the government’s actions fascist.

Europa Nostra, which considered the National Theatre as one of Europe’s seven most endangered heritage sites, called it a sad day for cultural heritage as well as democracy and rule of law in Albania and Europe. The organization also condemned the detention of civil society activists protesting against the demolition of the Theatre.

EU Ambassador to Albania Luigi Soreca stated on Twitter that the demolition of the National Theatre came at a time when dialogue between the government and civil society members was necessary. “We regret that this call has not been followed up by the relevant national and local institutions,” he wrote.

The U.K. Embassy in Albania also expressed concern over the demolition of the Theatre and emphasized the lack of dialogue as well as the evident violence among citizens and police. “We support the democratic right to protest and call upon all involved to ensure they are peaceful. Violence undermines basic principles of democracy.”

German Ambassador Zingraf expressed concern of repercussions this might have on the country’s fight against coronavirus. “The hasty demolition of the National Theatre in Tirana at dawn today is difficult for me to understand in the form in which we saw it. In the current state of emergency, dialogue between government and civil society and transparent government action are particularly important. Against the background of combating the corona pandemic, this development makes me all the more concerned, since the crowds that have already happened and are still to be expected can mean a step backwards. I call on all actors to engage in dialogue and restraint,” the Ambassador stated.

The German Ambassador’s message and concern was also shared by the Dutch Ambassador to Albania, Guusje Korthals Altes.

IV.

OTHER LEGAL BREACHES

It is incomprehensible why the municipality of Tirana has to deal with the procedures of demolition and construction of the new National Theatre. Law no. 10352, dated 18.11.2010 “On the art and culture”, clearly defines the status of the National Theatre as the responsibility of the central government and also regulates the legal status of theatres owned by the municipality.

For this reason, the National Theatre cannot be responsible for local government, including its construction.

AIS Recommendations for interventions related to the Public Procurement Sector

AIS has carried out several activities under the Improvement of the Integrity of Public Contractors Project, aiming at creating an impact through two components of the project: i. strengthening civic actors, media, and non-governmental organisations ii. Public pressure for improving Public Procurement legislation and practice in the country

Regarding the second component, AIS became officially part of the working table with the Albanian Government in drafting the new Public Procurement Law. Our organization presented its findings and proposals regarding problems of legislation on public procurement, and mainly the integrity of public contractors at this working table (government; agencies; parliament; international assistance bodies). Also, AIS has proposed that the Government should develop a public procurement strategy, and is already working on proposing the priorities that such strategy should have, such as improved digitalisation of e-Procurement and the practices of scanning competitors through short listing in the process of public procurement.

Please find some of AIS Recommendations for interventions related to the public procurement sector Here.

Case Study – Public Procurement Big Contracting

Another activity of our project Improve Integrity of Public Contractors was the preparation of two case studies for two large public contracts and procurements. The objects of the first one is the Concessionary Agreement for the financing, design, renovation, supply, reorganization and functioning of the PPP concessionary for providing laboratory services to hospitals, regional and municipal ones. The second case study refers to the procedure for Buying uniforms for the State Police for several years.

The first procedure is a procedure conducted in 2017 and finalized with a contract being awarded only in 2019. The selection was done through an open tender and a consortium of several companies was selected as the winner, [1]with these companies established a concessionary company later[2]. The procedure was followed by wide debate about the selection of the winning operator, as one of the companies of the winning consortium was registered in a country under the shell regime. The local authorities did not demonstrate any efforts to make any verifications of the integrity of this company or to check for potential conflicts of interest of its owner(s).

The case study developed as part of the project identified some wrong procedures that had already been opposed by the Government-contracted Consultant. Upon review of this case study, it was found that:

1) The Contracting Authority – the Ministry of Health, did not meet one of the essential conditions provided by the Law and Regulations on concessions/PPPs, namely: The legal obligation of comparing the PPP Model with the Public procurement to prove the cost effectiveness of the PPP project compared to the Public procurement, which would allow for the development of this Project;

2) The Contracting Authority has not published any reference for the financial analysis based on technical, quantitative, or statistical elements for the laboratory services as the basis for calculating the value of the Project in the amount of 13,005,966,000 lekë, without VAT;

3) The Implementation of the Laboratory Project for almost the entire Territory of the Republic of Albania carries an edit risk for the Public party, because in case of failure, this could lead to collapse of the Public laboratory system, which would be a health catastrophe;

4) The Contracting Authority has failed to deliver on its commitment to reduce the social impact of the project.

5) The Winner of the Project is selected in contradiction with the legal framework on concession/PPPs, the criteria published by The Contracting Authority, and without taking into consideration the Opinion of the IFC international expert;

6) The contract does not provide for one of the main insurances for projects of this nature, such as “Insurance of Professional Liability”.

Find the Case Study HERE (Albanian) and Here ( English)

The case of central purchases represents the highest value tender held so far by the Central Purchasing Authority. This tender is held on behalf of the State Police Directorate. The procedure selected for contracting in this case is a particular procedure rarely used, given its limits regarding the high monetary values. What is interesting is that this tender is being held at the same time the project is implemented. This case was selected given the problems already evident with the type of procedure followed[3], already excluding interested operators from competing by selecting them through the limited procedure

Find the Case Study – Here ( Albanian)

[1] http://openprocurement.al/sq/hconcession/view/id/6

[2] http://opencorporates.al/sq/nuis/L91923002T

[3] http://openprocurement.al/sq/agency/view/id/344

Purchases for Covid-19 Situation, the Albanian Government applies Secrete Contracts, bypassing Participation and Transparency

AIS, an organization promoting Open Data Albania, observes with concern that the Albanian Government has decided, in an anti-constitutional manner, illegally, and without any legitimate need, to consider Secret Contracting and Procedures for purchasing during the emergency created by Covid-19.

 

  • Through two Decisions of Council of Ministers (DCM), namely: DCM No. 203, dated 26.02.2020 “On procedures to be used for signing Contracts dictated by the State Essential Interest” and amendments made by DCM No. 242, dated 22.03.2020 “On some amendments to Decision No. 203”, the Council of Ministers considers procedures and contracting related to Covid-19 as equal to Secret Contracting LINK.
  • This DCM is in contradiction with the Constitution. Article 118, paragraph 2 of the Constitution of the Republic of Albania provides that “The Law shall authorize the issuance of secondary legislation, assign a competent body, issues to be regulated, as well as the principles on the basis of which such legislation is issued”. Article 6 of the Public Procurement Law (which the Council of Ministers refers to in issuing this DCM) does not authorize the issuance of any Special Normative Acts for secret contracts, contracts requiring special safeguards, or contracts dictated by the state essential interest. DCM No. 203 does not contain any definition of the situation, circumstances, or cases when “state esential interest” are applicable, but leaves it under the case-by-case discretion of the contracting authorities; In other words, the term “state essential interest” is not legally regulated, and it remains an abstract concept, which is not defined, and which is left up to the subjective decision of the authorities, increasing thus the risk of arbitrariness.
  • The above-mentioned Decisions of the Council of Ministers lead to situations, where clients are selected without any published calls for expression of interest, which makes it impossible to identify and look for efficient operators. In this time of crisis, the possibilities for supplies are limited and characterized by dynamic changes. Many are applying innovative forms, in order to enable as fast tracing and identification of the leading suppliers as possible, ensuring supplies in the current situation. Governments cannot trace these suppliers by communicating with one client only, leaving no room for presentation and participation. This approach violates every Principle of Participation and Competition.
  • The Government has made an unjustified intervention, as long as the Albanian Legislation (Law No. 9643/2016) regulates already the Negotiation Procedure and Limited Procedure quite well, which could already provide for fast, efficient, and useful purchases, without any need for secret operations. These two procedures, already provided for by the national Legislation, do guarantee the possibility for supplies in situations of emergencies and disasters, guaranteeing Proportionality.
  • On the other hand, all the elements of a contract, such as the scope of purchase; process; characteristics and specifications of goods or services to be purchased, would not be subject to any Publication; Transparency; and Accountability for purposes of Ensuring Trust and Public Oversight, given that they are going to be secret.
  • Violation of the Principle of Open and Transparent Governance. The Albanian Government is avoiding the principle of Open Government, and this happens at a time when the Reformed Legislation in the Area of Contracting in several European countries, and not only, requires all contracts made in cases of emergency to be fully published as open data. This is to recall that since 2009, Albania is part of the Open Government Partnership, taking a special commitment in the context of Procurement Sector, not yet fulfilled.
  • Classification of these contracts (procedures) as secret because of the essential interest of the state falls against even the Normative Act of the Government on Announcement of Situation of Natural Disaster itself, an act which contains no provisions restricting the Constitutional Right to Information (Article 23 of the Constitution).

 

Our organization considers these acts of the Government as anti-constitutional, illegal, unjustified, and in contradiction with the basic principle of good governance, i.e. Accountability and Transparency. Direct Negotiation (Article 33 of the Procurement Law) and the Request according to the Limited Procedure (Article 31 of the Procurement Law) are sufficient to guarantee fast, efficient, and intelligent Contracting and Procurement, and proportional to the Essential Interests of the People of a State.

 

AIS joins the Open Contracting Partnership Recommendations for Governance, recommendations for Purchases in the situations created by Covid-19, for Fast, Smart and Transparent Purchases (Open) https://www.open-contracting.org/what-is-open-contracting/covid19/

Treasury transactions; how and how much are being paid by the budgetary institutions for their bills;

Every Treasury Transactions made by our budgetary institutions, be it common or emergency payments. The Treasury Transactions is a well-structured database containing data about every payment made by budgetary institutions. The data catalogue has information on any transaction from 2012 and onwards. In addition, using search engines and communication filters, you may access information about payments made by institutions, by categories of expenses, and beneficiaries, according to the payment amount. We will continue updating our information every Friday. Access here

Kursori.org, an e-learning platform, in quarantine empowering itself for a well-paid and online labor market.

Our most useful database in times of quarantine Kursori.org .The ODK and AIS have applied in the last two years an e-Learning platform for enabling young people to develop their digital skills, a program that enables training on skills for an innovative market of Information Technology. The database is designed to assist students in Kosovo and the high school students of Lezha and Kurbin, Albania, to develop for a safe job market. From today, our e-Learning platform Kursori is open to everyone. Young people and anyone else may obtain three levels of skills to develop their capacity, so they can make the most of it to benefit the most and not waste their time while in quarantine. Kursori.Org is supported by the European Delegation as an activity of the Open ICT Education for Youth Employability Project and is financed by an EU IPA cross–border project. The objective of the project is to foster youth employability providing open access to critical ICT knowledge and skills, and strengthening cross–border cooperation between the educational institutions. In times of quarantine, this is a useful tool for professional training and development that allows you to work from home. We are opening this platform for everyone, it’s in Albanian. Click, register and become skilled. A great team of Tech Leaders is there to assist you.

What the Health Sector is procuring includes small purchases for the safety of the regional doctors;

What are our Health institutions purchasing through negotiations for emergencies or through common purchasing procedures? We have a track record of all the public health sector investments and purchases. In the past two weeks, a few purchases have been recorded for the reinforcement of hygienic protection for health buildings. Link health tenders
Other transparent procurements for the following institutions are being updated with accessible and well-structured documents on our databases:
Tenders for Local Government Units: Open Procurement Municipality and subordinate institutions. Link
Tenders of the Central Purchasing Agency, purchases for executive institutions Link
Transparent procurements by the Albanian Road Authority, tenders for infrastructure Link
Tenders by state-owned companies (SOCs) buying, the major suppliers of massive services, such as drinking water, electricity, etc. Link