Albania 1998 Constitution (reviewed 2016)

Annex. Transitional Qualification Assessment

Article A. Limitation of the constitutional rights

1. To the extent necessary to carry out the re-evaluation the application range of some articles of this Constitution, in particular provisions regarding privacy, to include Articles 36 and 37, provisions related to the burden of proof, and other provisions including Articles 128, 131, paragraph f, 135, 138, 140, 145 paragraph 1, 147-a paragraph 1, letter b), 149-a paragraph 1, letter b), are partly limited in accordance with Article 17 of the Constitution.
2. Persons who have passed the re-evaluation as provided in this Annex, are subject to the permanent accountability system regulated by the ordinary rules contained in the Constitution and the relevant Laws.

Article B. International Monitoring Operation

1. An International Monitoring Operation shall support the re-evaluation process by monitoring and overseeing the entire process of the re-evaluation. It shall include, partners, within the framework of the European integration process and Euro-Atlantic cooperation and shall be led by the European Commission.
2. The International Monitoring Operation shall perform its tasks in the framework of international arrangements in force. The International Monitoring Operation will appoint International Observers following a notification to the Council of Ministers. International Observers shall be members with at least 15 years of experience as judges or prosecutors in the judiciary in their own countries. The mandate of an international observer shall only be revoked for gross misconduct, by the International Monitoring Operation.
3. International Observers shall have the following duties and authority:
   1. They may issue recommendations to the Assembly concerning the qualification and selection of the candidates for the position of members of the Commission (Commissioner), the Appeal Chamber (Judge) and Public Commissioners, in accordance with the rules provided by law;
   2. They are entitled to file findings and opinions with the Commission and the Appeal Chamber and in particular may contribute to the background assessment regulated in Article DH. In those findings, the International Observers may request that the Commission or the Appeal Chamber take evidence or may present evidence obtained from state bodies, foreign entities or private persons, in accordance with the law.
   3. they are entitled to submit a written recommendation to the Public Commissioners to file an appeal. If the latter decides not to follow this recommendation, the Public Commissioner is required to issue a written justification.
   4. they have immediate access to all information, people and documents necessary to monitor the re-evaluation at all levels and in all stages.

Article C. General provisions for the Commission and Appeal Chamber

1. The Commission shall consist of four permanent first instance panels having three members each.
2. Two Public Commissioners shall represent the public interest and may appeal the decision of the Commission.
3. The Commission and Appeal Chamber shall both operate with accountability, integrity and transparency and with the objective of promoting an independent and competent system of justice free from corruption. During their mandate, the members of the Commission and Public Commissioner shall have the status of a judge at the High Court. The judges appointed to the Appeal Chamber shall not be subject to age limit and have the status of judges of the Constitutional Court, unless provided differently by law.
4. All members of the Commission and judges of the Appeal Chamber, the Public Commissioners and the staff of these institutions as set by law, must consent to the yearly disclosure of their assets, constant monitoring of their financial accounts and waiver of the privacy of their communication related to their work. All asset declarations shall become public.
5. All members of the Commission and the judges of the Appeal Chamber shall have a university degree in law, and no less than fifteen years’ experience as a judge, prosecutor, law professor, advocate, notary, senior employees in public administration, or other legal profession related to the justice sector. Candidates for member of the Commission and judges at the Appeal Chamber may not have been judges, prosecutors or legal advisors or legal assistants in the two years prior to their nomination. They shall not have held a political post in the public administration or a leadership position in a political party for the past 10 years before becoming a nominee.
6. The President of the Republic of Albania shall conduct an open and transparent application process for the positions of the members in the Commission, judges of the Appeal Chamber and Public Commissioners. All candidates shall send applications and all declarations in accordance with the law to the President. Within 7 days from the deadline for the submission of applications, the President shall compile a candidate list of applicants who meet the formal criteria for each position and a separate list of applicants who do not meet the formal criteria. This process is monitored by the International Monitoring Operation. If the President cannot complete the process within 45 days of the entry into force of this Annex, the duty shall revert to the Ombudsperson.
7. A panel of at least three representatives of the International Monitoring Operation (IMO) shall assess the candidates, in accordance with the law. Not later than 14 days from the day of submission of the 2 lists by the President, the panel shall on the basis of its assessment submit its recommendations to the President, who then forwards them to the Parliament. If the President cannot exercise his competences within 5 days, the competence shall revert to the Ombudsperson.
8. Within three days of receiving the list of applicants who meet the formal criteria, the list of applicants who do not meet the formal criteria and the list of IMO recommendations, the Assembly shall create an ad hoc committee with six members consisting of equal representatives from the majority and opposition. The committee may with at least four votes move a candidate from the list of those who do not meet formal criteria to the list of those who do. The committee may with at least five votes move an applicant from the IMO’s recommendations list to the candidate list for voting. Within ten days of its formation, the ad hoc committee shall forward the candidate list for voting for each position to the ad hoc committees for selection. The other two lists shall not be forwarded for voting.
9. The Assembly shall form within ten days two ad hoc committees for selection consisting of equal representatives from the majority and opposition, one committee with 12 members and one committee with 6 members.
10. Within 30 days of forming the ad hoc committee, each member of the 12 member committee shall select, from the candidate list for voting, a candidate for commissioner, without debate and in a secret and electronic vote that ensures that one member may elect one candidate. The committee shall then select two candidates from the candidate list for voting for public commissioner, using a simple vote where the two candidates with the most votes are selected. In case of a tie, a lot shall be used. Two alternate members for each position shall be selected in the same manner used for public commissioner.
11. Within 30 days of forming the ad hoc committee, each member of the 6 member committee shall select from the candidate list for voting a candidate for judges of the appeals chamber, without debate and in a secret and electronic vote that ensures that one member may elect one candidate. The committee shall then select the seventh judge from the remaining candidates on the candidate list for voting, using a simple vote where the candidate with the most votes is selected. In case of a tie, a lot shall be used. Two alternate judges for each position shall be selected in the same manner used for the seventh judge.
12. The selections from the two ad hoc committees are consolidated into one list and sent to the Chairman of the Assembly. Within ten days, the Assembly shall approve the entire list of candidates as a block by a majority of three-fifths. If the Assembly fails to approve the block of candidates, the Chairman of the Assembly shall send it to the ad hoc committees to repeat their selection process and submit a second list within 10 days. Within ten days, the Assembly may reject the entire list of candidates as a block by a majority of two-thirds. If the list is not rejected, those selected shall be automatically appointed. The details of this procedure are regulated by law.
13. Members in the Commission, judges of the Appeal Chamber and Public Commissioners shall work full time and may not hold any other position or employment during their mandate.
14. The Commission and Appeal Chamber and the Public Commissioners shall have a budget, staff and facilities sufficient to support their duties and the duties of the international observers, in accordance with the law.
15. The official languages of the Commission, Appeal Chamber and Public Commissioners shall be Albanian and English, and they shall have translators and interpreters accordingly.
16. Members of the Commission, judges of the Appeal Chamber and Public Commissioners are subject to disciplinary liability. The disciplinary cases shall be reviewed by the Appeal Chamber, in accordance with the law.
17. The members, judges, public commissioner, international observers, staff, and their families shall be protected at highest level in accordance with the law.

Article Ç. Re-evaluation

1. The re-evaluation will include an Asset Assessment under Article D, a Background Assessment under Article DH and a Proficiency Assessment under Article E of this Annex and the law.
2. The Commission and Appeal Chamber may publish information and take into account comments obtained from the public. They shall respect the balance between privacy and investigation needs, and shall guarantee the right to a fair trial.
3. Official bodies of the Republic of Albania shall cooperate with and disclose requested information to the Commission and Appeal Chamber shall grant direct access to their databases and may provide opinions and proposals in accordance with the law.
4. The Commission, or the Appeal Chamber through their staff, the Public Commissioners, its members and assisted by the international observers, shall review the assessee’s completed background declarations, may interview people named in the declaration or others, and shall seek cooperation with other state or foreign institutions to confirm the veracity and accuracy of the disclosure. The Commission, the Appeal Chamber and the international observers shall have direct access to all relevant government databases and files, if not classified as state secret, including the assessees’ personal files, statistical data, files selected for evaluation, self-evaluations, opinions of supervisors, training records and complaints, verification of complaints, disciplinary decisions against the assessee, property and land registers, bank accounts, tax offices, car registration data bases, border control documentation as well as any other relevant documents. The Commission or the Appeal Chamber may order private individuals and companies to provide testimony or evidence in accordance with the law.
5. The shift of the burden of proof to the assessee applies only for this assessment and not for other, in particular, criminal proceedings.

Article D. Asset Assessment

1. Assesses shall be subject to declaration and audit of their assets with the purpose of identifying assesses, who possess or have the use of assets greater than can be legitimately explained, or those assessees who have failed to accurately and fully disclose their assets and those of their related persons.
2. Assessees shall submit a new and fully detailed asset declaration in accordance with the law. The High Inspectorate for the Declaration and Audit of Assets and Conflict of Interests shall audit the asset declaration and submit to the Commission a report about the legitimacy of the assets and the accuracy and fullness of the disclosure, in accordance with the law.
3. The assessee has to credibly explain the lawful origin of assets, property and income. Income shall only be considered legitimate if it has been declared and taxes have been paid. Legitimate income shall be defined in detail by law.
4. If the assessee has assets greater than twice the amount justified by legitimate income, a presumption for the disciplinary measure of dismissal shall be established which the assessee shall have the burden to dispel.
5. If the assessee has not submitted the asset declaration in time in accordance with the law, he or she shall be dismissed. If the assesse takes steps to inaccurately disclose or hide assets in his or her possession or use, a presumption for the disciplinary measure of dismissal shall be established which the assessee shall have the burden to dispel.

Article DH. Background Assessment

1. Assesses shall be required to submit a background declaration and be subject to a background assessment with the purpose of identifying assessees with inappropriate contacts with persons involved in organized crime. The background assessment on persons involved in organized crime will be based on the background declaration and other evidence as appropriate, including Albanian or foreign court decisions.
2. Assessees shall submit a duly filled-in detailed background declaration to the Commission for the period January 1, 2012 to the day of the declaration, as regulated by law. The completed background declaration can only be used as evidence in this procedure and by no means may be used in a criminal case.
3. If the assessee has inappropriate contacts with persons involved in organized crime, a presumption for the disciplinary measure of dismissal shall be established, which the assessee shall have the burden to dispel.
4. If the assessee does not submit the duly completed background declaration in time in accordance with the law, he or she shall be dismissed. If the assessee takes steps to inaccurately disclose or hide contacts with persons involved in the organized crime, a presumption in for the disciplinary measure of dismissal shall be established, which the assessee shall have the burden to dispel.

Article E. Proficiency Assessment

1. Assesses shall be subject to a proficiency assessment, with the purpose of identifying those who are not qualified to perform their role and those who have deficiencies which can be remedied with education.
2. The Proficiency Assessment shall be conducted with the assistance of the officials in charge of the ethical and professional evaluation of judges or prosecutors at the time of the Assessment. The Proficiency Assessment for judges, legal advisors or legal assistants shall assess judicial capacity, organizational skills, ethics and commitment to judicial values, personal quality and professional commitment, based on standards provided by law. The Proficiency Assessment for prosecutors shall assess prosecutorial capacity, organizational skills, ethics and commitment to prosecutorial values, personal quality and professional commitment based on standards provided by law. The Proficiency Assessment for legal advisors or legal assistance includes a test at the School of Magistrate. The Proficiency Assessment shall not consider pending cases.
3. If the assessee has demonstrated poor knowledge, skill, judgment, or aptitude, or there is a consistent or substantial pattern of work possibly non-compliable with the position, the deficiency shall be identified and a presumption for the disciplinary measure of suspension with education to remedy that deficiency shall be established which the assessee shall have the burden to dispel.
4. If the assessee has demonstrated inadequate knowledge, skill, judgment, or aptitude, or there is a consistent and substantial pattern of work of a quality which is inadequate with the position, and the deficiency is unlikely to be remedied with one year of education program, a presumption for the disciplinary measure of dismissal shall be established which the assessee shall have the burden to dispel.
5. If the assessee acts to substantially prevent or confound his or her assessment, or has demonstrated such insufficient knowledge, skill, judgment, aptitude, or a consistent or substantial pattern of work which can threaten or diminish the rights of citizens, the assesse shall be considered inadequate and a presumption for the disciplinary measure of dismissal shall be established which the assessee shall have the burden to dispel.

Article Ë. Disciplinary Measures

1. If either the Commission or the Appeal Chamber determines that an assessee requires disciplinary measures, it shall issue a reasoned decision which orders either the disciplinary measure of one year suspension with education or the disciplinary measure of dismissal.
2. A decision ordering suspension with education identifies an assessee’s deficiency, suspends the official with 75 % of the relevant salary, assigns the assessee to the School of Magistrates until the education program starts and orders one year of education which is designed to remedy the deficiency. At the end of the education program, the suspended official shall be tested. The test is done under international supervision. Assessees failing the test are dismissed by the Commission.
3. The dismissal of a judge or prosecutor does not constitute a ground for the re-opening of cases decided or prosecuted by the assessee, except in the cases based on which a review can be requested according to the procedural codes.

Article F. Appeal Chamber

1. The Appeal Chamber shall consist of seven judges. Only judges appointed to the Appeal Chamber may decide appeals against the re-evaluation in accordance with the Annex and the law. They decide in panels of composed of five members each.
2. The assessee shall have the right to appeal to the Appeal Chamber in accordance with the law. The Public Commissioners shall each also have the right to appeal, expect for decisions under article Ë, paragraph 2, of the Annex.
3. The Appeal Chamber enjoys the power to take specific fact finding steps and shall remedy any procedural errors of the Commission taking into account the assesses fundamental rights. The Appeal Chamber shall decide the case and may not transfer the case back to the Commission. This constitutional jurisdiction does not allow to call into question the constitutionality of the principles on which the re-evaluation process as such is based and the criteria used in this law.
4. The international observer takes part with the same rights like those in first instance.
5. In the case of appeal the salary is 75 % of the relevant salary. In the case of a successful appeal at the Appeal Chamber the remaining salary shall be paid. A final decision ordering dismissal has ex lege immediate effect.
6. An assessee filing an appeal of a disciplinary measure is suspended pending the decision of the Appeal Chamber.
7. The Appeal Chamber shall uphold, modify or overrule the decision of the Commission In cases of appeal by the Public Commissioner, it may not impose a more strict disciplinary measure without providing the assessee with sufficient notice to prepare and respond in a hearing.
8. Assessees shall have access to the European Court of Human Rights.

Article G. Resignation

1. If the assessee resigns during the re-evaluation procedure, he or she not assessed any further.
2. Assessees who resign under this provision may no longer serve as a judge or prosecutor at any level, member of the High Judicial Council or High Judicial Inspector or High Prosecutorial Council, or Prosecutor General for the duration of fifteen years.