Now that the problem is identified through methodological examination, it is logical to follow up with some recommendations which, we believe, will help improve the situation. We take this opportunity to underline again that through its expertise and monitoring capacities, the Centre for Public Information Issues, CII aims to prove the need for improvement.

It is quite obvious to initially suggest the Centre for Official Publications to publish in “extra” editions of Official Journals the acts which this monitoring has identified as unpublished. Center for Public Information Issues, CII strongly recommends that this “extra” edition publication start processing immediately.

By urging such step, we take into account or better say relay on the principle that by not publishing a normative act in the Official Journal, the act itself does not necessarily become non-valid, it is simply deprived of its legal force by not coming into effect; non-validity is judged separately and in complexity. The legal effects that an act might have generated prior to its publication in the Official Journal are considered in principal “null”, while the act itself is considered as non-existent.

Another significant approach in the frame of these recommendations relates with the identification of causes that might have led to defects in the publications’ system functioning, resulting with the non publication of acts in the Official Journal (in  our case mostly acts issued by the Council of Ministers.)

Though this monitoring effort (intervention), introduced through this publication, represents the first of its kind ever done in Albania in the specific field, almost 10 years have passed now since the first approval of the Law no. 8502, dated 29.6.1999, “On the establishment of the State Publication Center”. This is quite a sufficient amount of time to come up with some considerations on the effects that this law was supposed to generate (produce). Just to remind:  prior to the approval of this law, the publication of the Official Journal was situated under the institutional authority of the Parliament (the Legislative branch of power). The Law no. 8502, dated 29.6.1999, “On the establishment of the State Publication Center” passed the latter under the institutional authority of the Ministry of Justice, and later on under the direct authority of the Minister of Justice himself. The reason, as explained in Chapter I, Introduction of this research-study, linked closely with the elimination of bureaucratic delays, for a more flexible publication practice on acts issued by the Executive branch of power, namely the Council of Ministers, Ministries, etc.

The data collected in the framework of this monitoring indicate that while the volume of acts issued by the Executive branch of power increases continuously (theoretically, it is a total of 1729 DCMs in 2008 only, compared to just 924 over 2007), proportionally increases also the number of the missing acts which result as not published in the Official Journal (minimum 69 to maximum 295 DCMs approved during 2007 and minimum 218 to maximum 465 DCMs approved during 2008).

This is a very meaningful indicator to see in a critical eye the potential of the current law to generate the effects that the law-maker intended at the moment of its approval.

The authors of this study hold the opinion that the present subordination of the State Publication Center under the Minister of Justice exposes the Centre itself towards vulnerable performance; the current subordination does not protect the Centre against hypothetical arbitrary demands. that might come from heads of various ministries and/or other heads of high administrative institutions.  

For this purpose, CII recommends to start examining alternative options for strengthening institutional subordination of the SPC and in the same time to ensure the adequate climate for the Center to fulfil its mission as required by law.

Real evidence in support of this recommendation is the case identified when the Decree of the President of the Republic, No. 5543, dated 12.12.2007 “On the promulgation of the Ambassador of the Republic of Albania to Japan” was not published in the Official Journal. As a result of this juridical-formal “delay”, he could not present his credentials as ambassador in the hosting country. The act mentioned above was published almost a year after the date when the relevant decree was promulgated by the President. In the course of the conclusions and recommendations of this monitoring study, the CII would recommend the initiation of a public and institutional debate for the improvement and modernization of the legal framework for official publications in the Republic of Albania.

But, the most sensitive recommendation implied by this monitoring results concerns the thorough review and modernization of the indexing system used for acts issued by the Council of Ministers. The current system carries premises for inaccuracies and deficiencies in the publication of acts issued by this very important institution in the Official Journal. If the current system will continue to be at use, principles such as Transparency in decision making process, Good Governance, Strengthening the Rule of Law etc., will continue to remain compromised or just an illusion.

Another recommendation regarding such concerns relates to the publication of project (draft) laws and agreements’ approval in principle issues by the Government. As explained above, the two categories of Council of Ministers’ acts are not published in the Official Journal due to their non-definitive nature: the Parliament must further examine them before they are passes (approved) as laws (or not).    

The truth is that, within this monitoring, isolated cases when these type of acts are found published in the Official Journal, have been identified. Law no. 8502, dated 29.6.1999, “On the establishment of the State Publication Center”, amended by Law No. 9091, dated 26.6.2003, as well asLaw No. 9000, dated 30.1.2003“On the organisation and functioning of the Council of Ministers” do not make any provision that acts issued by the Council of Ministers in exercise of its authority to propose laws and sign agreements, shall not be published in the Official Journal. Both laws might need further improvements and/or clarifications in this respect in order to avoid miss-interpretation or arbitrary implementation.
 
The most typical case, recently emerged, that affirm and confirm this recommendation is the controversial agreement “for the approval in principle of the agreement for delimitation of the continental shelf between Albania and Greece”, which became a topic of intensive polemics in the media and in the public opinion. Lack of transparency in dealing with and addressing this agreement turned into a premise for political tensions between the main parties as well as a precedent which does not encourage good relations with neighbouring states, in the concrete case with Greece, a European Union member country.  

CII recommends the publication of such type of acts in special editions by the SPC, in order to serve transparency in government decision making, but also for anyone to become familiar with these acts before they "petrify" in laws or become ratified by the Parliament as a definitive agreement between states.

Though this is not the aim of this monitoring, it is very important to stress that there is no way which can ensure that all Official Acts that must be published in the Official Journal are realistically submitted to the State Publication Center within the time limit provided by the law.

Likewise, it is hard to verify whether all acts submitted to the State Publication Center, are in fact processed and published in the Official Journal. This can be achieved through a detailed case by case examination or periodical inspection of the register of acts, which is kept indispensably by State Publication Center, and through index examination of all acts published in the Official Journal.

The Ministry of Justice may carry out such an inspection, but it remains at the discretion of the Minister of Justice, who may not be always aware of the periodical regularity of Official Journal publication, even though he is the first person to receive a copy of the Official Journal within 24 hours after its  print out.

It is easy to withhold (hide) from the Minister of Justice staff or the Minister himself the fact that the Official Journal is not issued (has a circulation of) as many copies as announced for the official record and that it is not distributed to subscribers within the time limit contemplated by Law. This creates real premises for abuse, i.e. the application of alternative methods to deliver on demand, such as photocopying.

This premise for abuse may be easily avoided by changing the Law; the Albanian state recognises by law the legal effect of the Official Journal publication on the Internet (as a soft copy). In such case, only 3-10 copies are enough to be printed out for archiving the archival purpose of publication and/or to precede any eventual problem such might be the manipulation of the online database or the servers (the worst scenario is when data gets corrupted, erased or even deleted deliberately from inside). These authentic copies might be delivered:

1. one to the President of the Republic ,
2. one to the Parliament,
3. one to the Council of Ministers,
4. one to the Minister of Justice,
5. one to the Constitutional Court,
6. one to the Supreme Court,
7. one to the State Publication Center
8. one to the Ombudsman,
9. one to the State Archives,
10. one to the National Library.

A conference, called by the Forum of Centres of Official Publications in Europe, is held annually and its aim is to unify, improve and modernise procedures and systems of Official Acts publication. Among other things, this forum is a display of the latest contemporary practices from the most advanced countries whose example may be followed, along with the necessary amendments to be made to the Law for the State Publication Center in Albania. The majority of European countries have abandoned (or are in the course of abandoning) the practice of publication of the Official Journal in a printed format. These countries have closed down gigantic printing establishments and by the time, with the development of technology, they have adopted a new legal approach which recognizes by law the electronic dissemination of legal norms.  This has happened for more than one reason:

1. Economical – electronic dissemination of legal norms is much cheaper than those of the thousands printed copies of Official Journals, which cost a lot, need a big place for storage, and you can even forget to see those as the years pass away.
2. Speed in dissemination - electronic dissemination of legal norms is much faster, it is time-saving and effective above all (always based on the 100 % reliability on the system which shall be not erroneous and shall not allow for any outside interventions.)  
3. Great public access – European countries have a wide Internet extension throughout their territory and a great public access on the legal norms fund (bank).

The reasons mentioned above are the basis of initiatives undertaken in the recent years also in Albania regarding electronic dissemination of legal norms. We consider that Albania, too, has created already the basic conditions in order to provide in every commune or municipality a work station from which the State Publication Center website can be accessed online and any citizen can download from there all acts of interest for him, at any time. 

But unless the necessary legal improvements are made, the Albanian state, one the one hand and the citizens, on the other, cannot enjoy the advantage of this technological progress.

For the moment, the current law remains to be entirely enforced and strictly observed. As long as this happens to be the case for Albania, any failure to have the Official Journal issued in a printed format is a violation of the Constitution and the law, causes the legal acts of the Albanian state non-coming into effect (non-enter into force), subsequently causing grave consequences to the state and its subjects.

When we say “grave consequences” we do not mean simply that the state has not accomplished its mission towards its subjects. This is only one aspect of the above assert. The grave consequences may fall on the state itself in the sense that the state, as a subject itself or better saying as party, does not realise, produce or benefit from the effects that the laws and subordinate legal acts it issues aim at. Let us imagine a DCM on the application of a special tax increase to improve state budget incomes, which is not submitted for publication. If the law enforcement bodies that execute this act might start to collect the supposed tax, regardless of the fact that the act is not published in the Official Journal. After some time, any subject affected by the application of this administrative measure has the right to claim the return of the tax money, and even compensation for the damage caused based on the legal argument that the tax has been collected arbitrarily on the basis of a normative act which had not come into effect.  Moreover, in the context of improvements that legal framework has marked and is marking in the Republic of Albania, and while the approval of the Law on the Administrative Court is expected soon, the state becomes “more and more equal” under the law as much as any other subject in the Republic of Albania.

In other words, publication in the Official Journal of the acts issued by state institutions, in compliance with the laws in force, is an imperative and a growing obligation. The non-publication of these acts causes equal harm to the state and to the subjects.