Open Data Albania has published a Ranking of the Economic Operators in the Reconstruction Process based on economic values. In total, there are , Albanian leke 67.6 billion announced as being contracted to business companies. On the top of the list of operators, is a consortium led by a company established by a current mayor. The 10 largest contractors have 25% of the total contracted value. 33 Contractors have 50% of the fund. There are no foreign or international business company on the list, and this was expected as long as the procedure selected for identification and contracting does not respect economic freedoms and equality of competition. The data are part of the Contracting monitoring through two databases, Contracting Reconstruction Program in the Municipality and the Albanian Development Fund ADF .

Date: 17 Janar, 2022

The Democratic Party has filed a lawsuit in the Constitutional Court demanding the Suspension and Abrogation of Chapter VI of the Normative Act with the power of Law no. 9/2019 “On coping with the consequences of natural disasters”. This law violates the Freedom of Economic Activity as a constitutional freedom. Contracting for the 2019 Post-Earthquake Reconstruction Program with a fund of about120 billion Albanian Lekë is being done with contractors selected without open competition, restricting Economic freedoms. This law creates premises for the selection of businesses in clientelist ways causing high financial loss. AIS/OpenData, an Albanian Civil Society Organization prepared this Lawsuit  , and is filed to the Constitutional Court in September 2021. The Constitutional Court refused to review the Lawsuit, claiming that the organization does not have to justify direct interest in such claim. Recognizing the essence of the Lawsuit, and responding to the Organization’s request to set the Constitutional Court in motion at all costs, the Democratic Party supports the Civil Society request, and filed this Lawsuit signed by its 28 Members of Parliament. Now, the Constitutional Court must examine the unconstitutionality of this law.

Stages of the Process

• Data 28.09.2021 AIS files in the Constitutional Court a Lawsuit against Law no. 9/2019 “On coping with the consequences of natural disasters”, which violates Constitutional Freedom and creates Clientelism. Lawsuit in Albanian and English .
• Date 26.11.2021 AIS public statement “The Constitutional Court is delaying the Examination of the Lawsuit, ALL 100 billion are tendered through clientelism.
• By its decision No. 132, taken on November 15, 2021, published for the parties on December 1, 2021, the Constitutional Court decided not to pass the case for consideration in the Plenary Session by Case Rapporteur, Judge Elsa Toska. Decision No. 132 to Reject the Adjudication of the Case.
• January 2022 The Democratic Party, with the signatures of 28 MPs submits to the Constitutional Court a Lawsuit for Suspension and Abrogation of Chapter VI, Public Procurement Procedures, Articles 40 – 44, and Article 4, point 7 and point 9, of the Normative Act with the power of Law no. 9, dated 16.12.2019 “On coping with the consequences of natural disasters”, approved by the Assembly of Albania through law no. 97/2019, on 18.12.2019. 
• Database Contracting Reconstruction Program by Municipality – https://openprocurement.al/en/tender/rindertimi
• Database Contracting Reconstruction Program by Albanian Development Fund – https://openprocurement.al/en/albaniandf/rindertimi

The risk of misuse of public money in elections is high. AIS denunciation of the misuse of the Post-Earthquake Reconstruction Program in the April 25th Elections was rejected by the Administrative Investigation Institutions.  They did not provide solutions for the violations found in the zone where Prime Minister Rama won. AIS reported that in violation of the Electoral Law, the Council of Ministers Decision dated 25 March and Durrës Municipal Council Decisions 12-24 April, transferred and executed in Durrës 6.1 Million Euro of non-emergency grants with Individual beneficiaries benefitting 1-5 thousand USD. The Commissioner declared himself incompetent and rejected the lawsuit. The CSC, after AIS Appeal, accepted the investigation but ended it with only one hearing where no Experts or challenged parties were heard. Based on the positions of the CSC and those of the Commissioner, the organization raises the alarm that the Reconstruction Fund, a medium-term budget program for 3-5 years, can be used in the next elections to compromise voters by giving individual grants a few hours before voting.

Stages of the AIS Process against the Council of Ministers and the Municipality of Durrës, Denunciation, Decision, Administrative Investigation:

1. Date 31 May 2021, AIS submits a Denunciation to the State Commissioner for Elections, the Reconstruction Fund was Used in Durrës to Favor the Electoral Entity SP. The respondents include the Council of Ministers and the Municipality of Durrës HERE
2. Date 16. 07. 2021, State Commissioner Response and Request for Information from Reported Institutions HERE

• Decision no. 439 dated 2.08.2021 Decision of the State Commissioner for Elections for Extension of the Term of Administrative Review HERE

1. Rejection by the Commissioner. CEC decision (no. 457, dated 01.10.2021) On the administrative review of a violation provided in decision no. 9, dated 24.12.2020 of the Regulatory Commission, in the Central Election Commission, to the Council of Ministers and the Municipal Council of Durrës HERE
2. October 28th, 2021. AIS Appeal Against Decision no. 457, dated 01.10.2021 of the State Commissioner for Elections HERE

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  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.

 

The latest progress report of the European Commission for Albania estimates that there is good progress in the adoption of a new Law on Procurement, according to EU Standards. But in the meantime, the Albanian Government avoids and bypasses this Law by using Special Laws for contracting. Typical cases include contracts for post-earthquake Reconstruction, Medium Term Program of the State Budget, planning around 100 billion Albanian Lekë. Contracting is being done by circumventing the Sector Legislation, according to the Normative Act Law 97/2019. Such act, which has the power of law, violates the constitutional right to Economic Freedom and creates ground for clientelism and favoritism. The Constitutional Court was asked by a Lawsuit to repeal Law 97/2019. The lawsuit was filed on September 18, 2021, and there is still no date for reviewing a Law of the Albanian Government with serious financial consequences. So far, the Reconstruction contracts have been made by the Executive and the Main Municipalities. The lawsuit provides arguments as to what negative effects the application of the Special Law has on the Legislation Drafted according to EU Standards.