The newest project started by AIS is named Improvement of Integrity of the Public Contractor, Legislation, Practice and Role of Civic Actors. The project is supported by the Netherlands Ministry of Foreign Affairs, as one of the MATRA Program in Albania. On July 18th, the Dutch Ambassador Ms. Guusje Korthals Altes and Director of AIS Ms Aranita Brahaj signed an agreement for the launching of the project activities. The project shall make an assessment of the national legislation, comparing it with EU member states regarding the selection and evaluation of the private companies competing for public contracts. The findings shall conclude and recommend improvements for the national legislation and practice. Empowering investigative media and civil actors monitoring public contracting processes is going to be one of the components of the project, focusing on issues related with the integrity of private contractors.
The Open Data Albania ODA Portal published several investigative articles of open data from the audit reports of Albanian State Supreme Audit Institution (ALSSAI) during 2018. The articles identify the economic damage found in monetary value, the institutions responsible for the highest damages, and the mostly affected sectors and areas. The damage and ineffectiveness identified by the auditing for this year is estimated to two hundred and thirteen billion Albanian Leks, or one point seven billion Euros. The damage consists of two categories, Irregularities and Financial Violations causing economic damage to incomes and expenses, and Violations of the Financial Discipline with a negative impact in the performance of the auditees. The audits were carried out in line with the ALSSAI’s Audit Plan for 2018, covering the institutions’ economic and financial activity for 2014 – 2018. During 2018, ALSSAI audited one hundred and sixty two institutions.
On the 26th of July, a round table was held in Tirana with journalists and representatives from the civil society on the Role of Central and Local Authorities during electoral periods, Monitoring Practices. The round table was organized by the Albanian Institute of Science (AIS) and the Institute for Political Studies (ISP), supported by USAID/Accelerated Civic Development and Cooperation Project. The two organizations implement projects for monitoring and improving the situation in relation to the use of public assets in electoral years. AIS is implementing a project consisting of monitoring abuse of public assets by state-owned companies during electoral periods. As a result of this project, two databases were presented. One of them consists of comprehensive historical records and information for each tender procedure of state-owned companies over the two last years, including the electoral year. The other database provides the public with information and knowledge about the management and performance of state-owned companies from the time they were established up to the present. The database is accessible on the Open Corporates Albania portal, under the State-Owned. Companies section. The participating journalists in this event represented various traditional media and online media such as Top Channel; Ora News; BIRN; ShqiptarjaCom; Shekulli; News 24; Opinion; Citizens Channel; Centre for Quality Journalism; ExitAl, etc.
The experts at this round table were knowledgeable about both legislation and practices regarding the performance of the public sector and its monitoring, and mainly those of state-owned companies in Albania and in the region. The purpose of the round table was not only to present the monitoring findings, but also to enhance the capacity of journalists in producing quality reports on the use of public assets in electoral years.
A round table was heldon 11.06.2019, with representatives from the media, civil society, and institutions. The purpose of this round table was:
to present the volume and dynamics of the institution’s work over the last 15 months;
analyze the context in which the institution was established;
assess the impact of the Agency on the efficiency and quality of Procurements and Contracts,
compare it with other models, and identify the need for interventions and further improvement
Moderators in the round table were experts in the legislation and institutional practices of procurement and contracting. They were: Muharrem Çakaj and Elton Lula, expert in procurement and appeals, former member of the Public Procurement Commission.
In addition to journalists and civil society representatives, participants included also representatives from the Ministry of Finances and the High State Audit.
The well-structured database of procurements made by the Public Procurement Agency by their volume and characteristics was presented at the round table. Thus:
During this period of 15 months, the system has announced the signing of 293 contracts, which are worth a fund limit of 6 347 790 714 Albanian lekëhttp://openprocurement.al/sq/agency/list (no more than 20 contracts per month).
These 293 contracts include 12 contract by a value of more than 100 million Albanian lekë each http://openprocurement.al/sq/agency/list/limit_fond/100%20infinit?
The highest-value tender is the one for purchasing Uniforms for the State Police and complementary accessories, reaching the fund limit of limit 908 973 900 Albanian lekë, announced on August 10th, 2018. This tender is cancelled, because none of the submitted bids met the tender criteria. http://openprocurement.al/sq/agency/view/id/30
The total number of cancelled tenders is 37, including 3 of a fund limit exceeding 100 million Albanian lekë. Two of those tender procedures were cancelled after a winner was announced http://openprocurement.al/sq/agency/list/status_id/4?
23 tenders were conducted with one competitor only http://openprocurement.al/sq/agency/list/bidder_no/1?
So far, the Central Purchasing Agency conducts tenders for 81 state institutions, including the Director of State Police, Customs, Prisons, Health Institutions, etc.
The RedFlag instrument has automatically marked so far 65 tenders by red flags, including 8 that exceed the value of 100 million Albanian lekë each (from 12 contracts in total) http://openprocurement.al/sq/agency/redflag and 33 of 5 up to 100 million Albanian lekë each.
Upon conclusion, the round table participants identified the need for better regulating the process of selection of the Agency employees and their status; the needs for completing the secondary legislation needed for the institution, as well as the need for increasing the number of Government institutions delegating their procurement powers to the Agency. One of the most voiced needs was the one for improving and strengthening the role of watchdog stakeholders in monitoring public contracting.
The Central Purchasing Agency is a state institution established in 2018 in order to concentrate the purchasing of goods and services for ministries and their subordinate institutions. The Albanian Government created this institution to increase efficiency and to better counter corruption in the use of public money for actual expenses. AIS has established a monitoring and assessment instrument regarding risk of favoritism and clientelism in these tenders. From February 2018 until May 2019, the Agency has procured 293 contracts in total, including 65 that lacked competition. AIS finds delays with the publication of contract signing or lack of publication of documents related with the monitoring of the execution of contracts in its database for transparent procurement. The Agency will continue to be monitored for its two first years of operation.
Tenders without competition, direct negotiations, or tenders with only one economic operator competing, involve a high risk of irregularities and misuse of public contracts and funds. Through its Transparent Procurement Program, AIS has found that 18% of the total number of tenders carried out by municipalities involve at least one risk in this process. The assessment is made using RedFlag algorithm as an anti-corruption instrument. Municipalities and their subordinate institutions announced calls for tenders from January 1st to December 31st 2018 for 5642 contracts that were worth 21.9 billion Albanian lekë. The Redflag assessment system, on the other hand, marked 997 contracts by red flags for this period, i.e. 18% of the total. The Database for Municipality Transparent Procurement offers opportunities to monitor and assess every tender conducted by Municipalities for their first term in office, i.e. 2015-2019.
The TV program “31 Minutes ” is one of the attempts to qualitative journalism. The program is being broadcast for the last few months on the public television thanks to cooperation between the Albanian Radio and Television and the Albanian Center for Quality Journalism. The Albanian Institute of Science AIS joined the program supporters by helping journalists write their articles of an investigative nature. Promoting qualitative journalism based on facts and expertise is one of the most important elements relevant to freedom and quality of journalism in a courageous and independent manner.
The kursori.org Platform was presented in the framework of May the 9th, Europe Day in TiranaThis instrument in the Albanian language is developed as part of a project implemented by ODK and AIS on Open ICT Education for Youth Employability. The project offers free vocational training courses on Information Technology to “Kolin Gjoka” Vocational School in Lezha, “At Shtjefën Gjecovi” High School in Laç, “At Shtjefën Kurti” High School in Gorre, “Arif Halil Sula” High School in Mamurras, Miloti High School and two Universities “Ukshin Hoti” in Prizren, and “Haxhi Zeka” in Peja. ICT skills represent very good opportunities for employment in the European market without having to immigrate. The project is supported by the EU Delegation as a cross-border IPA Project for Albania-Kosovo. The Head of the EU Delegation in Albania, Ambassador Soreca, joint the promotion of the kursori.org and its activities benefitting youth vocational and economic development.
The Internet “enables people to have access to information and services, to connect and communicate, and to globally share ideas and knowledge. It provides the essential tools for participation and consideration in political activities and other public interest activities.”
According to the European Court of Human Rights, the Internet is “an information and communication tool particularly distinct from the printed media, especially as regards the capacity to store and transmit information. The electronic network, serving billions of users worldwide, is not and potentially will never be subject to the same regulations and control. The risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life….. is certainly higher than that posed by the press”.
Furthermore, in the case of Ahmet Yildirim v Turkey, the European Court of Human Rights stressed that: “Internet has now become one of the principal means by which individuals exercise their right to freedom of expression and information.”  The Court also recognized that: “defamation and other types of illicit speech, including hate speech and violence-inducing language can be disseminated as never before, worldwide, in just a few seconds and in some cases stay permanently in the media ”.
The European Court of Human Rights has sanctioned that the first and most important requirement of Article 10 of the European Convention on Human Rights is that the interference of any public authority with regard to the right to expression should be lawful. In order to comply with this important requirement, the interference does not simply require basis in the domestic law of the country. The law itself must correspond to some important “quality” requirements. In particular, a norm can only be considered a law only when it is designed with precision to enable citizens to regulate their behaviour. The measure of precision depends to a large extent on the content of the instrument in question, the field for which it is designed to cover, as well as the number and status of those to whom it is addressed. While the notion of predictability applies not only to the stage of behavioural implementation, but also to “formality, conditions, limitations or sanctions” that are associated with such behaviour if considered in violation of domestic law of the country.
- The approach to regulate the “internet defamation” issue at the same time and with the same legal act regulating audiovisual media and electronic communications is not recommended. The regulation of audiovisual media/electronic communications and the transfer of the regulation of the defamation issue to the internet domain in them is an incorrect legislative approach.
- Human rights do not exclude the prohibition and punishment of defamation, even in the field of the internet. Freedom of expression of the individual is also applied on the internet, as is practicable in any other mean of communication. Limitations are only permissible if they pass the three-part test: legality, legitimacy and proportionality. Interferences in freedom of expression are legitimate if: a) are provided by law; b) they pursue a lawful purpose; c) are necessary in a democratic society.
- As per above, AIS is of the opinion that public authorities have all the “margin of appreciation” to regulate by law the issue of defamation on the Internet. However, this issue should be regulated only by a separate law – an integral law – dedicated and covering only this issue without setting it and adding/amending other laws, whether they are related to electronic communications or not. The UK Defamation Act model can serve as a valid model for the content and legislative technique recommended in this case.
- The new integral law should not have in itself the purpose of punishing, but the definition of development options, specified and effective legal approaches that are appropriate for the unique features of the internet. Self-regulation should be foreseen as an effective mean of addressing hate speech, defamation, extremism, etc. and as such should be promoted.
- Raising awareness and educating efforts to promote everyone’s ability to
be included in an autonomously, self-propelled and accountable manner on the Internet
should be an incorporated element of the new integral law. In this regard,
according to the international law, the state has a number of positive
obligations it has to fulfill. This component is known as “internet literacy”.
- The language used in the texts of articles should be revised. The deadlines foreseen in the draft law are such and start for example: The request for the right of reply should be submitted to the OSHPE within 7 days from the date of the publication of the facts and information that are allegedly incorrect. If failed to comply with such deadline, the request is not presented or even when it is filed shall not be considered.
- The deadline in this article and in other articles should not be related
to the date of publication of the information, but to the date of receiving of
the information by the complainant and the evidence that he has become aware
of. For example, a person may become aware that he was slandered from a portal
with a one-month delay (because the person does not visit at all any portal)
and not within a few days of publication, as provided by the law.
- The new integral law (as well as the two draft laws in consultation) should eliminate as far as possible general wording. For example, what it means “inaccurate information for a person” or “The provider of the electronic publication service should ensure that the handling of events, including issues that are subjects of public debate, is fair to all interested subjects in these issue and be presented in a true and impartial manner.” This definition is difficult to understand and even apply. If a person opens his blog and expresses his opinions, for example, to oppose the entry into the European Union of Albania then how this blogger should properly regulate his behavior to be true and impartial ??!! The online blog according to the provisions of both draft laws is included in their area of action.
- Other general terms used in
draft laws and affecting the standards of precision requested by the European
Court of Human Rights that must be reviewed are “the provider of the service of electronic publication: should not
violate the dignity and fundamental human rights” or “to observe the rules of public morality“;
or “not to affect public safety“,
- The new integral law and the provisions in the two draft laws in consultation should not set online the registration media, in any form, as a condition so the latter can operate in a free manner. It is understandable that registration requirements at AKEP (or any other body) may be set, for example, if these portals apply to obtain financial assistance from the state, but in any case the registration should be simple, in a transparent and politically impartial procedure, and in any case not to affect editorial independence.
- AIS deems that the only institution that can and should order the blocking/suspension  should be the court of the respective district court, the civil section. There is no reason, as provided in the draft-law, to add another administrative way. Moreover, the vetting procedures in the judiciary – which are in process of implementation – increase guarantees to decision-making by an independent judiciary outside of political influence and professional in this area as well. The new integral law should also contain detailed provisions for the court to ensure a fair trial. In this regard, court proceedings outside the Code of Civil Procedure have also been applied in the case of the law “On Measures against Domestic Violence”. Consequently, quick, effective, transparent procedures and in compliance with the principle of fair trial are possible to be provided in this particular integral law. The decision to block/suspend will be like any reasoned court decision where the means of appeal will be provided accordingly.
- The measure of temporary
suspension should also be given by a reasoned decision of the court. The new
integral law, at every stage of the judicial review, should provide for quick
and effective adjudication and decision-making time limits.
- The new integral law should provide that the measure of blocking/suspending access to certain Internet sites constitutes a very serious measure of interference with freedom of expression. As such, the extent of the block should be considered by law as the ultimate extreme measure that can only be undertaken in well-specified cases by the law, justifying such measure. These measures are missing in the draft law text because they relate only to a numerical criterion of the administrative offense, which hardly passes the test of extreme of violation.
- The same rights as being off-line (outside the scope of the internet) rights, obligations, behavioural rules are the same when using the Internet, especially the right to express themselves and access to information. Words, conditions and circumstances for blocking/suspending access to the Internet should be well-defined in the law and not by general wording.
- Even in
their interpretation by the court, the new law must sanction that such
interpretations should clearly refer to the narrower and least restrictive
- Any blocked/suspended website should also have the necessary information in a non-professional legal jargon about who has demanded the blocking, the reasons for the blocking decision, the court decision, the time limits when this blocking is valid, etc.
- As a rule, suspension/blocking of the entire website
should not be permissible. Any court order for blocking/suspension must be
concrete and any other lawful information, even if it is accessory on the
website, should not be subject to blocking/suspension.
 Recommendation CM (Rec) (2011) 8 of the Committee of Ministers to Member States on the Protection and Promotion of Universality, Integrity and Internet Openness, adopted by the Committee of Ministers on 11 September 2011.
 Case Editorial Board of Pravoye Delo and Shtekel v Ukraine, decision of 5 May 2011, paragraph 63.
 Case Ahmet Yildirim v Turkey, decision of 8 December 2012.
 Case Defli AS v Estonia, decision of 16 June 2015, paragraph 110
 Case Lindon, Otchakovsky-Lauren, and July v France, application no. 21279/02, paragraph 41.
 Case Groppera Radio AG and Others v Switzerland, decision of 20 March 1990, paragraph 68.
 Case Kafkaris v Cyprus, application no. 21906/04, paragraph 140.
 “Regulation of defamation on the Internet” is the terminology that preceded the presentation of the draft laws and afterwards accompanied the drafting and the publication phase of these two draft laws that are in public consultation.
 Although such measures may serve to important state interests – particularly national security or public order protection – or to protect individual rights – such as freedom, security and equality – they interfere with the freedom of expression and the right of access to information and, consequently, may have negative implications on democratic values.
Freedom of expression includes the right to disseminate information or ideas that “offend, shake or disturb the state or any section of the population,” as the European Court of Human Rights states.
The News Edition on a National TV, Top Channel, reported on 3 January 2019 on a Complaint made by a Non-Governmental Organization against Albania in the European Court of Human Rights. The Constitutional Court and the High Court in Albania are affected by the Vetting and are therefore not functioning. As a result, dozens of cases are left pending. The Organizations AIS has a legal recourse pending with the High Court. On such basis, the organization addressed the European Court of Human Rights claiming that Albania is violating article 6 of the Convention and human rights to trial in a reasonable time. The European Court is asked to adjudicate the merits of the case as long as it is not yet known when the High Court in Albania will resume its work
Albanian Institute of Science
Nr 13 /25, Kati 3