The Election Commissioner refuses to investigate the Denounciation on Misuse of Public Funds in the Election Campaign, the case goes to the CSC

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The organization AIS expresses its regret and would like to let you know that it has made an appeal against the Decision of the State Commissioner for Elections no. 457, dated 01.10.2021, through which the Commissioner refuses to review of the denunciation made by AIS/OpenDataAlbania Report on 31 May 2021. The parties denounced for having mismanaged the public funds are the Council of Ministers and the Municipality of Durrës.

Our denunciation dated 31 May provides arguments on the Misuse of Public Assets and Funds for electoral purposes, by the Council of Ministers and the Municipality of Durrës during the Electoral process April 25, 2021. http://ais.al/new/wp-content/uploads/ Call-CEC-Final-in-two-languages-1-this1.pdf

 

The Commissioner, by Decision dated 1 October, has decided to declare the review of the Claims submitted as beyond its competences. Link: http://ais.al/new/wp-content/uploads/Vendim-457_211001_Vendim-ndaj-Keshillit-te-Ministrave-Keshilli-Bashkiak.pdf

 

Considering this decision of the Commissioner unfounded in law and evidence, as well as contrary to the current practice developed by the Commission of Sanctions and Complaints (CSC), AIS filed on October 28th, its appeal by addressing the CSC. Link: http://ais.al/new/wp-content/uploads/ANKIMI-KAS-AIS_English.pdf

The complaint states that the Commissioner’s Decision should be Repealed because:

 

  1. There are Violations of the Due Legal Process during the Administrative Procedure.
  2. The foundation of AIS Request remained unanswered.

 

AIS (http://ais.al/new/en/?s=election ), as the author of the Denunciation, demanded asked the Complaint and Sanctions Commission to Repeal Decision no. 457, dated 01.10.2021 of the State Commissioner for Elections and Return the case for review to the Commissioner. Also Pursuant to Article 137 and/or Article 138 of the Code of Administrative Procedures, amendment of decision no. 457, dated 01.10.2021 of the State Commissioner for Elections and conduct of additional administrative investigation into the denunciation of AIS by the Complaints and Sanctions Commission and introduction of legal measures upon its conclusion.

 

The Complaint Review Session will be held by the CSC, on Monday, November 8 at 11 o’clock.

Some details on the administrative irregularities of the Commissioner’s Decision are set out below:

  1. Having no response from the Municipality of Durrës and the Council of Ministers and considering the requested information important for the administrative investigation, the Commissioner, by its decision no. 439, dated 02.08.2021, has decided to extend the term of the administrative review of the denunciation for violations provided for by the Electoral Code and decision no. 9, dated 24.12.2020 of the CEC Regulatory Commission on the Council of Ministers and the Durrës Municipal Council. LINK:  http://ais.al/new/wp-content/uploads/CEC-Decision-439_English.pdf
  2. Even after the extension of the term of the administrative review, the Commissioner has administered on 02.08.2021 only the response of the Municipality of Durrës by Mrs. Emeriana Sako, who performs the functions of the Mayor of Durrës.
  3. The Council of Ministers did not respond to the Commissioner and the latter did not request a response from them, and has not imposed any punitive measures for non-cooperation with the CEC as required by Article 169 of the Electoral Code[1].
  4. AIS: was not informed and did not have the opportunity to comment on any material / response submitted by the Municipality of Durrës.
  5. The Council of Ministers has not commented on this denunciation twice, it has not offered cooperation with the Commissioner and is not administratively punished for its position.
  6. In the process of making the final decision, AIS as the complainant was not given the opportunity provided by the Code of Administrative Procedures, Article 93, to finally express its claims. As the complaining subject, AIS shows a legitimate interest in this proceeding, because it is the party that made the denunciation and should have been called as an interested party in the administrative proceeding followed by the Commissioner.
  7. By Decision dated October 1, the Commissioner Decided to consider the review of the Claims submitted outside its jurisdiction, leaving AIS Denunciation against the Council of Ministers and the Municipality of Durrës for Misuse of Public Funds in the Election Campaign of April 25 without a thorough investigation.

AIS , as the author of the Denunciation, demanded asked the Complaint and Sanctions Commission to Repeal Decision no. 457, dated 01.10.2021 of the State Commissioner for Elections, and Return the case for review to the Commissioner. Also Pursuant to Article 137 and/or Article 138 of the Code of Administrative Procedures, amendment of the decision no. 457, dated 01.10.2021 of the State Commissioner for Elections and conduct of the additional administrative investigation into the denunciation of AIS by the Complaints and Sanctions Commission and introduction of legal measures upon its conclusion.

The hearing in the CSC was held on 8 November. The Complaints and Sanctions Commission (CSC) accepted our Request for changes to be made to the Decision of the State Commissioner regarding its lack of competence, but rejected the allegations of irregularities in the acts of the Council of Ministers and the Municipality of Durrës, i.e. the acts that made it possible to pay Individual grants a few hours before the Voting day. The text of the CSC Notice is as follows

The Complaints and Sanctions Commission reviewed today (November 8th) appeal no. 74, challenging decision no. 457, dated 01.10.2021, of the State Election Commissioner, a complaint by the organization Albanian Institute of Sciences (AIS).
The Albanian Institute of Sciences has challenged the acts of the Council of Ministers and those of the municipality of Durrës regarding the funds they have allocated to the subjects affected by the earthquake. The State Election Commissioner had claimed lack of competence over this complaint.
Having heard the appellant and having reviewed the documentation, the CSC found that its review is the competence of the CEC bodies, so by a majority of votes, it decided to accept the request to amend decision no. 457, dated 01.10.2021 of the State Election Commissioner, whereby the latter had declared itself not competent for reviewing the complainant’s claim.
At the end of the administrative investigation, the CSC concluded that the acts challenged by the Albanian Institute of Sciences do not constitute a violation of decision no. 9 dated 24.12.2020 of the Regulatory Commission (reformer), because such decisions do not propose, approve, or allocate any new funds, but simply set executive procedures, so by a majority vote it decided to reject the request for an administrative sanction to be imposed for violation of decision no. 9, dated 24.12.2020 of the CEC Regulatory Commission.

This Decision can be challenged in the Administrative Court within 30 days from its Disclosure on the CEC Website.

[1] Article 169 of the Electoral Code provides that: “Refusal to cooperate with the CEC or to provide information provided by this Code to the CEC, by officials of local or central government bodies, is punishable by a fine of 10 thousand to 50 thousand ALL.”