• Laws

The verification made in the context of this monitoring project shows in a summarized way that all the laws passed by the parliament and signed by the President of the Republic over three years, 2006, 2007 and 2008 are published in the Official Journal (Gazette).

Absences that are noticed when the increasing numerical order used for indexing the laws breaks, as in the case of Law No. 9467, dated 30.01.2006 "On the approval of the Normative Act having the force of Law, no.  4, dated 13.12.2005 "On an addition to Law No. 8405, dated 17.09.1998 "On Urban Planning “amended", or even in the case of the Law No. 9664, dated 18.12.2006 “On some changes and additions to the Law No.9235, dated 29.07.2004 “On the restitution and compensation of ownerships” amended”, are justified as long as the President of the Republic did not enact such laws.

In the mean time, irregularities have been identified in the practice followed for the publication in the Official Journal of at least 2 Laws:

1. Law no.  9482, dated 3.4.2006 “On the legalization, urbanisation and integration of illegal developments....” (Published in the Official Journal no. 36, pg. 1139, year 2006). “Index 2006” indicates that the aforesaid Law is approved on 16.2.2006.  The Official Journal no. 36, year 2006 has published this Law, but the date of publication is 3.4.2006, promulgated by decree No. 4831, dated 25.4.2006 of the President of the Republic of Albania, Alfred Moisiu.

2. Law no.  10019, dated 29.12.2008 " Election Code of the Republic of Albania".   In this case, the State Publication Center has published “The Election Code” on the same day when it was approved by the Parliament, not waiting for at least a day for the “Law promulgation” decree issued by the President of the Republic. The latter has promulgated the Law two days later, on 31.12.2008, by decree No. 5988, which is published in another routine Official Journal (No. 192, pg. 10425, Date of publication: 31-12-2008).

• Council of Ministers’ Normative acts (with the force of Law )

The verification made in the context of this project shows in a summarized way that over three years, 2006, 2007 and 2008 at least 5 normative acts (having the force of law) of the Council of Ministers have not been published in the Official Journal, namely:

• Normative Act of the Council of Ministers no. 1, passed in 2006.
• Normative Act of the Council of Ministers no. 3, passed in 2008.
• Normative Act of the Council of Ministers no. 4, passed in 2008.
• Normative Act of the Council of Ministers no. 5, passed in 2008.
• Normative Act of the Council of Ministers no. 6, passed in 2008.

• Decisions of the Council of Ministers (DCMs)

The verification made in the context of this project has identified over three years, 2006, 2007 and 2008, at least 380 Decisions of the Council of Ministers which have not been published in the Official Journal, concretely:

• At least 93 DCMs (tab no. 1), passed during 2006
• At least 69 DCMs (tab no. 2), passed during 2007
• At least 218 DCMs (tab no. 3) passed during 2008 

All these 380 unpublished DCMs have been identified both as title and content (see: tables 1, 2 and 3). 

Theoretically, the number of unpublished DCMs over the three years is around 1183 if we suppose that during these years the Council of Ministers did not pass any decision of “secret” character at all. (see: Briefly on Methodology)

If the Council of Ministers could somewhere announce the total number of “secret” CMD-s " passed during one given year, or simply the numbers corresponding to their index, then the identification of normal DCMs which appear to be missing in the Official Journal could be calculated with mathematical precision, without any methodological “intimidation”. No matter how great the will or monitoring capacities to shed light on the extraordinary amount of acts the executive branch of power issue, the system that indexes these acts represent a real nightmare from the monitoring point of view.

Therefore, the authors of this project, for methodological consequence, will be limiting  themselves to claim  that only 380 DCMs are identified as unpublished in the Official Journal over the years 2006, 2007, 2008. These 380 DCMs represent the floor level of what’s missing in terms of DCMs; the other hand the authors are convinced that their number is significantly greater than that.

At first glance, within this total of 380 unpublished DCMs

• nearly 150 are intended to have a financial effect,
• some 160 effect immovable property inventory  transferred from central to local government ownership
• approximately 50 affect public administration

A more careful observation shows a tendency: the DCMs carrying the last provision “this decision takes effect immediately” are more frequently missing in the Official Journal. This may be considered as a silent code which predetermines “the destiny” of a given act of the Council of Ministers when it comes to publication in the Official Journal of DCMs.

However, there are plenty of cases when the SPC has published also these types of DCMs which are “marked’ with this partial (incomplete) final provision. In Table No. 10, you may find a set of DCM,  randomly selected from various Official Journals published during the years 2006, 2007 and 2008, which, despite the provision providing that "this decision takes effect immediately”, are normally published in the Official Journal. This example coincides with what should be normal practice followed in this case, conformity determination nr.8502 Law, dated 29.6.1999, "For the creation of the Center of Official Publications", as amended by law nr.9091 dated 26.6 .2003 and the Law No. 9000, dated 30.1.2003, "On organization and functioning of the Council of Ministers".

This confirms the author’s conviction that SPC recognizes its legal obligation, no matter what practice followed by the Council of Ministers in formulating DCM’s final provision suggests.

Similarly it was also noted that final provision on the mode of an act entering into force was set different for acts of the same content. For instance, DCM no. 10, dated 13.1.2006 “On the approval of the inventory list of state immovable properties, in the commune of Fan, Lezha region” in its final provision states that “This decision takes effect after its publication in the Official Journal” (Published in Official Journal 1, pg.  14, Date of publication: 24-01-2006).
The same type of decision, for instance, DCM dated 19/07/2006, “On the approval of the inventory list of state immovable properties, in the commune of Bicaj, Kukes region”, in its final provision states that “this decision takes effect immediately ”. (This decision is not published in the Official Journal 2006.)

Identification of such a phenomenon regarding final provision suggestion implicates unambiguously the poor institutional performance of the Council of Ministers and not so much that of the SPC.

It is worth emphasizing that for DCMs not published in the Official Journal, and which refer to the transfer of immovable property ownership onto that of the local government, the Government expresses its view and take decisions at least two times for each of them, as foreseen by the law. To be more concrete, for the same inventory list the process starts with the approval of a DCM “on the adoption of the preliminary list of properties ...”. Then another DCM is issued “on the approval of the inventory list of properties...” and then another “on the approval of the definitive list of properties...”). A careful examination of the Official Journals over the years 2006, 2007 and 2008 indicates tens of cases when  both types of DCMs have been published in the Official Journal without making any distinction. Therefore, the non-publication, let’s say, of the DCM “on the approval of the inventory list” can not be justified given the case that the following conclusive DCM “on the approval of the definitive list of properties...,” which finalizes or closes the decision-making process on the subject, is supposed to be indispensably published in the Official Journal.

It is noted that among the DCMs identified as unpublished in the Official Journal during 2006, 2007 and 2008, the majority of them have an individual character rather than a normative one. In the framework of this project, several experts of legal practice on administration have been asked to clarify as much as possible the publication practice followed in such specific case. Some admitted that publication in the Official Journal of DCMs of individual character is not a practice followed by the Council of Ministers’ administration because, in theory, the approved decision is directly forwarded to the concerned individual (subject) in order to get him/her/it informed. Nonetheless, author of this project have identified a considerable number of individual character DCMs yet published in the Official Journal (see tab. 11.)

The Law no. 9000, dated 30.1.2003 “On the organization and functioning of the Council of Ministers”, makes no distinction between DCMs of individual or normative characters when defining the mode of entering into force of acts issued by the Council of Ministers.

Consequently, the approach adopted by author of this research-study is that DCMs of individual character should be published in the Official Journal. Among 380 DCMs which are identified as not published in the Official Journal over 2006, 2007 and 2008 there are also plenty of DCMs of an individual character.