AIS addresses the Court of Strasbourg in the absence of both a High Court and a Constitutional Court in the country, asking this court to review the merits of a case, which is now in a process of recourse.

On the 19th of November, AIS addressed the European Court of Human Rights, Council of Europe, asking this court to consider AIS claim against Albania as a matter of priority and examine the merits of this case for compliance with Article 6, Article 10, and Article 13 of the European Convention for Human Rights.

Such application comes at a time when the High Court, where a recourse is filed, and the Constitutional Court are non-functional.

The arguments for the case, whose merits are to be reviewed by the Court, are presented to the Court of Strasbourg as follows:

Subject:   Request to deal as a matter of priority the application AIS v Albania and to examine the merits of this case for breach of article 6, article 10 and article 13 of the European Convention of Human Rights.

On 9 June 2015, during the local electoral campaign, the Albanian Institute of Science (AIS)[1]  – an Albanian NGO – sent an official request to the three main electoral subjects, i.e. the Socialist Party (SP), the Democratic Party (DP), and the Socialist Movement for Integration (SMI) asking them for the following information:

  1. list of donors of non-public funds, from whom they had benefitted since 21 May 2015 amounts above 100 000 (one hundred thousand) ALL or the equivalent value in services or goods;
  2. list of every expense made since 21 May 2015 using the annual funds benefitted from the state budget in 2015.

The above electoral subjects did not respond to our request. Therefore, pursuant to Article 24 of Law no. 119/2014 “On the right (access) to information”, AIS filed a complaint with the Commissioner for the Right to Information and Protection of Personal Data on 7 July 2015.

The Commissioner for the Right to Information and Protection of Personal Data informed us on 25 July 2015 of its decision no. 44, dated 22.07.2015 on “Rejection of complaint”. The Commissioner rejected our request no. 675, dated 9.07.2015, arguing that “the requested information is to be administered by the organizations foreseen by this law and it’s Article 2, which are not defined as public authorities in terms of how they are organized, how they operate, and their regulatory legal framework”

Pursuant to Article 25 of Law no. 119/2014 “On the right to information”, the Albanian Institute of Science filed a lawsuit with the Administrative Court of First Instance of Tirana.

Upon completion of the court hearings, the Administrative Court of First Instance of Tirana delivered the decision no. 5687, dated 10.11.2015 according to which: “The court rejects the lawsuit of the Albanian Institute of Science against the Commissioner for the Right to Information and Protection of Personal Data, the Socialist Party of Albania, the Democratic Party of Albania, and the Socialist Movement for Integration of Albania, which claims the “Abrogation of decision no. 44, dated 22.07.2015 of the Commissioner of the Right to Information and Protection of Personal Data as a lawsuit not based on evidence or law. The court forces the political parties (electoral subjects), i.e. the Socialist Party, the Democratic Party, and the Socialist Movement for Integration to provide the Albanian Institute of Science with the information requested about the financing of their electoral campaigns as per its (AIS’) request dated 9 June 2015.” 

The Albanian Institute of Science complained against the decision of the Administrative Court of First Instance by addressing the Administrative Court of Appeal on 25 November 2015. The Administrative Court of Appeal by decision no 5236, date 22.11.2017 decided to uphold the decision of Tirana First Instance Administrative Court.

The case now is pending before the Supreme Court of Albania.

AIS addressed the European Court of Human Rights on 18 May 2016, asking this Court to express itself on this adjudication process, and whether they constitute a violation of Articles 6 and article 13 of the European Convention of Human Rights.

As you may know on July 22, 2016, the Parliament of Albania approved 17 constitutional amendments required to reform the justice system, aspiring to change its image by making it more independent, accountable and efficient. These constitutional amendments, inter alia represent the implementation of the Vetting Law, known as the temporary re-evaluation of the judges and prosecutors of the Republic of Albania.

The process of reassessing members of the judiciary system, otherwise known as the vetting process, started in November 2017 and will include over 800 judges and prosecutors, as well as a number of other employees of the justice system.

Up to nowadays the results of the vetting process are for the Supreme Court only 4 judges passed the vetting, and two of them are still under review procedures at the Appeal Chamber.

So far, the Constitutional Court is the institution that has been hit hardest by the vetting process. Out of nine members, only two have successfully passed the verdict and one of them is in the appeal process before the Appeal Chamber.

No one in Albania is able to predict when there will be established and become functional, both the Supreme Court and the Constitutional Court. Consequently no one in Albania can give an answer when the AIS appeal in the Supreme Court and eventually in the Constitutional Court will be judged. Meanwhile the topic of the request and of the whole thing loses the actuality because the request for the transparency of the finances of the political parties in the elections was made in 2015, still has no final answer from the Administrative College of the Supreme Court/ Constitutional Court and meanwhile there are also next local elections to be held in June 2019.

Furthermore we want to add in the AIS application the legal arguments and request to consider the claim for breach of article 10 of the European Court of Human Rights by Albania.

The European Court of Human Rights in the case Magyar Helsinki Bizottsag v Hungary did recognize that such a right to information or obligation to provide information may arise in two categories of cases: (1) where disclosure of the information has been imposed by an enforceable judicial order, and (2) in circumstances where access to the information is instrumental for an individual’s exercise of their right to freedom of expression, and where its denial constitutes an interference with that right.

The Court went on to set out four principles, drawn from its more recent case law relating to access to information, that could be relied on to determine whether a denial of access falls within the second category of case.

– The purpose of the information request: it is a requirement, before Article 10 can come into play, for the information sought to be necessary for the exercise of the right to freedom of expression. The right to vote can be considered as freedom of expression and knowing in advance before the election date the financing of political parties is a precondition for free and fair election. This can be demonstrated where the denial of the information would hinder or impair and individual’s exercise of the right.

– The nature of the information sought: the information to which access is sought must generally meet a “public-interest test” for the disclosure to be necessary under Article 10.

– The role of the applicant: where the individual is seeking access to the information with a view to informing the public in a capacity as a public or social watchdog, this will be an important consideration in determining whether Article 10 applies.

– Ready and available information: the extent to which the information being sought is ready and available will also be an important criterion when determining whether Article 10 is applicable to a case where an individual has been denied access to information.

Based on these conditions, please consider our request to examine also the merits of the case in the application AIS v Albania at the European Court of Human Rights submitted on 18 May 2016 regarding the breach of article 6, article 10 and article 13 of European Convention, and please consider as well the possibility of expediting the procedure for AIS application examination in Strasbourg, as soon as it is possible.

Hoping that our request will be taken into consideration.

Aranita Brahaj

Executive Director of AIS

Legal representative Viktor Gumi  Attorney at Law

Prior phases of the Court process of AIS vs Political Parties for transparency on electoral financies


[1] Albanian Institute of Science (AIS) is an Albanian registered NGO. Its mission is to promote scientific activity and applied research in Albania to solve socio-economic problems, increase transparency, and strengthen civic engagement and respect for human rights. Financing of political parties during electoral campaigns and informing the public in a capacity as a public or social watchdog has been for many years one of the main activities by AIS. 

AIS conference on presenting red flag index for private contractors of public companies

In the framework of its Promoting Transparency in Public Spending – Open Local Government Procurements  Project , AIS organized a press conference on 29 October in Voskopoja presenting are open procurement data of the Albanian Development Fund and red flag index for private contractors of public companies For Journalist working on the field in Albania. The tools presented to Journalist will help them to easly monitor and identify possible risk for corrupation. This project is supported by NED- National Endowement for Democracy .

 

Albanian Development Fund Procurement on an Online Database since January 2015 by Open Contracting standards

The Albanian Development Fund (ADF) is one of the most important public institutions. Its projects are covered by the State Budget and credits from important international institutions. The monitoring of ADF’s procurement of public works is particularly important given the high value and impact they are expected to have on the public sector. AIS has developed a database containing a passaport for each procurement in accordance with the OpenContracting standard. Anyone may search for data concerning tenders, fund limits, winning offers, winning operators, disqualified operators, and contract terms and deadlines. The data may be filtered enabling an analysis by the location of investments, nationality of contractors, type of tender procedure, type of project, and level of competitiveness. The data will be updated on daily basis, enabling taxpayers to monitor contracts signed for public money and goods.

Mayors’ Asset Declaration, Economic Interests and Wealth

Which are the economic interests of Mayors? Asset Declaration is a process that enables the control of integrity, interests, and wealth of high-level officials. Mayors in our country, as high-level elected officials, are obliged to declare their assets to the High Inspectorate of Declaration and Audit of Assets and Conflict of Interest. Asset declarations, however, are not published on the website of the Inspectorate or on any municipalities’ websites. Pursuant to the right of information, AIS created asset declarations made by mayors over the years. Every citizen may search online for the assets and economic interests of their mayors or those of their family members. Other analysis and economic interests of mayors are available under Open Data Albania.

Open Corporates Albania – Monitor Municipalities’ Clients

Monitor Municipalities’ Clients – One of AIS projects on Municipality Transparency. The main output of the project is the Open Corporates Albania database. This database contains economic data concerning business companies that have won tenders and contracts with the municipalities. The database introduces the Municipality’s Private Contractors, identifies their owners and administrators, and describes their economic performance and activity. After winning a tender with the municipalities, these economic entities provide public services or works. The public may thus learn who stands behind the companies contracted by the Local Government Units. For each business company, a passport using OpenCorporate standards is created for each tender conducted by all the municipalities from 2015 and ongoing.

How are taxpayers’ money being spent? Payments by municipalities through Treasury Transactions

Where does taxpayers’ money go? For each municipality or state budget institution in the country, the well-structured database for Treasury Payments enables full transparency for every payment made to clients by the State Treasury. The system contains authentic data obtained from the Ministry of Finances, structuring them in a way that enables search by date of payment, category of expenses, beneficiary, invoice number and description, category, and value. For every municipality, taxpayers and citizens may monitor payments made by the state budget, searching by the paying authority, name of municipality, or budget institution. The data cover a period starting from 2012.

Tenders and Contracts – Learn about projects and public works for each municipality

From July 2015, since the creation of the 61 municipalities emerging from the latest territorial and administrative division, until July 2018, municipalities have signed more than 18 thousand contracts buying goods, services, public works, and organizing auctions or Public Private Partnerships (concesionary contracts). A passport is created in the Open Procurement Albania database for each tender accessible to the public in the OpenContracting format. In addition, the database provides well-structured information enabling search for procurement by the procuring authority, winning competitor, type of contract, date of tender announcement, etc. The system includes also an algorithm, where each contract is automatically scanned on the basis of some criteria, and marked by RedFlag when applicable. The redflag algorithm has led to 10% of the total number of municipalities’ tenders marked by red flags, identifying thus the risk of lack of competition, inequality, favoritism, and economic abuse. The database is used in dozens of investigative articles in the Albanian media.

AIS increases transparency over municipalities on the eve of local government elections, monitoring 4 years of performance

The organization AIS is a promoter of transparency and open data. Databases created and maintained by AIS enable monitoring of public expenditures, public procurement, management of the public assets and distribution of budgets by local government units. July 2018 marks exactly three years from the emersion of the new municipalities resulted from the latest administrative-territorial division. the latest administrative-territorial division. This year could be well considered the electoral year, carrying the 2019 local elections. AIS invites citizens, activists, and journalists to monitor the work and integrity of municipality leaders by using also transparent databases available in the open format opendata, which are easy to find, use, and reuse.

Monitor Contracting through Data, Health Sector Albania

Monitor Contracting through data in the Health Sector, shining light on issues related with the distribution of money by contractors. 13 thousand contracts awarded by institutions of public health in the country (2016 – 2018) to 586 contractors , business companies. Thus, 61% of these contracts were finalized through tender procedures involving one single competitor, while 25% through closed tender procedures with negotiation . Transparent Procurement in the Health Sector not only opens up data about contracting in this sector, but it also provides opportunities for analyzing and visualizing information. This database will soon involve the application of a red flag algorithm identifying tenders posed to a risk of inequality, lack of competition, or situations of clientelism.

Database of Concessionary Companies – Information on their Contracts and Performance

A concessionary register by the civil society versus the Government register. It is 222 business companies involved in concessionary agreements or PPPs with the Albanian Government, which anyone may monitor on our database OpenCorporates.al, under the ‘Concessionary Companies’ category . It contains information for each company regarding their structure, ownership, history of ownership transfer, annual performance in terms of turnover and profit, concessionary fees, address and licenses for the activities they carry out, etc. This range of data for each passport is published in JSON and CSV as open data formats. The information passports are accompanied by links to documents like contracts, amendments to contracts, special laws, procurement acts, and other documents relevant to concessions. The Albanian Government is involved in a high number of public-private partnerships in the recent years in sectors like energy, health care, education infrastructure, road infrastructure, telecommunication, services, etc.