The right to information in Albania

Joniada MUSARAJ, Edevana TIRI, Blerina MUSKAJ

Abstract: The Right to Information is considered a fundamental human right, as acknowledged by various international agreements and also stated in the Constitution of the Republic of Albania. The right to access information is a core human right. Consequently, upholding this right is synonymous with honouring human dignity. The right to information acts as a guiding principle for individu­als whose interests are impacted by administrative decisions, ensuring that they are aware of the types of decisions made regarding their concerns and that they can appeal those decisions.  The right to information is a cornerstone of demo­cratic health and a beacon of transparency for the public. It is not merely a key human right; it serves as a vital precondition for realising other fundamental rights, such as the freedom of expression.

The Albanian Constitution now guarantees the right to information as part of its essential fundamental rights, signifying an important transformation in the coun­try’s governance. Since ratifying the European Convention on Human Rights (ECHR) in 1996, the Constitution clearly states that any restrictions on human rights must align with the provisions set forth by the ECHR. The adoption of the Law “On the Right to Information” brought significant advancements in trans­parency and the availability of information This law regulates the right to access information produced or maintained by public authorities, thereby establishing a framework that fosters transparency in government activities.

Keywords: right to information, constitution, European Convention on Human Rights, human rights.

Introduction

Every person has the right to ac­cess public information, without hav­ing to explain the reasons. The right to information has ancient roots. The first act that provided for it was the Universal Declaration of Human Rights and Freedoms of 1948, which provided for it in its article 19. [Uni­versal Declaration of Human Rights and Freedoms of 1948] Another act that guarantees the right to infor­mation is the European Convention on Human Rights. It provided for it in its article 10 related to freedom of ex­pression. [European Convention on Human Rights.]

In preparing the draft program of transparency for information, the pub­lic authority takes into account the best interest of the public and in par­ticular: a) ensuring maximum famili­arity with public information; b) mak­ing as much information as possible available without request, in order to reduce the need for individual requests for information. Transparency sym­bolizes a mechanism for promoting good governance and thus increases the public’s trust in a democratic and modern public administration.

In democratic countries and mod­ern public administration, the princi­ple of transparency is a controlling element against maladministration and a promoter of good governance and accountability towards the protection of the public interest and the rights of citizens. In this regard, the principle of transparency can be considered as a protector of legitimacy and accounta­bility in the administration, establishes a mutual trust between the govern­ment and the citizens and guarantees the ease of access to information.

In the past two decades, govern­ments around the world have enacted access to information laws at a pace unlike any other time in history. Gov­ernments in the world’s two most populous countries – China and India – have enacted regulations and legisla­tion, respectively, to demonstrate transparency, and more than four doz­en countries have enacted laws that have traditionally represented efforts to advance government openness. Globalization has played a key role in the international movement to pro­mote access to information legislation and institutions (ATIs), which, in the­ory, are designed to advance the flow of government information and gov­ernment accountability.

Transparency is often seen as es­sential to government accountability, but its measurement remains elusive. Transparency, as broadly defined, relates to the full flow of information within a state. A long literature em­phasizes the importance of providing information to the population to en­sure government accountability, and thus emphasizes the role of transpar­ency as a determinant of government performance¹.

Transparency under the Right to Information Law

1. All institutions must implement transparency programs, an obligation arising from the law on the right to information. Institutions are obliged to make public the information that the law provides as mandatory to be made public without the request of individu­als.

The public authority, no later than 6 months from the entry into force of this law or from its creation, shall im­plement an institutional transparency program, which determines the cate­gories of information that is made public without a request and the man­ner of making this information pub­lic².

2. In preparing the draft transpar­ency program, the public authority shall take into account the best interest of the public and in particular:
3. a) ensuring maximum access to public information;
4. b) making as much information as possible available without request, in order to reduce the need for individual requests for information;
5. c) the models approved for the cat­egory of public authority by the Commissioner for the Right to Infor­mation and Personal Data Protection, pursuant to Article 6 of this Law³.

The Commissioner for the Right to Information and Personal Data Protec­tion shall approve and distribute mod­els of transparency programs for dif­ferent categories of public authorities, in accordance with the legislation in force on the protection of personal data, within 3 months from the entry into force of this law.

Transparency means relevant, ac­cessible, timely and accurate data that authorities make available to the pub­lic to assess government action (ac­countability), to exercise a voice in decision-making (scrutiny) and to un­lock social and economic value for (public reuse)⁴.

Information should be:

• Relevant, meaning tailored to the specific needs of different audiences;
• Accessible, meaning understand­able and in a format suitable for reuse;
• Timely, meaning up-to-date, ac­curate and complete

A North American nation is among the 10 most transparent coun­tries in the world in the eyes of many people, while European countries hold the other nine spots⁵.

National acts that provide for in­formation

The Constitution of the Republic of Albania has provided for the right to information in its article 23, this right is expressly sanctioned, repre­senting one of the most important rights for the progress of democracy in the country. First of all, it is sanc­tioned with the aim of protecting the general interest in informing the pub­lic and presupposes that in a demo­cratic regime, the operations carried out by the government should be made public.

Government officials and social organizations are called to participate in the political, economic and social organization of the country. But only through the right to information are they acquainted with the various pro­cedures for finding fair solutions. Re­specting the right to information in all its aspects provides certain results for good governance, for a healthier and less corrupt society⁶. In its Article 23, the Constitution provides for the right to information, as a fundamental right, which consists of the obligation for transparency of public administration bodies and persons exercising state functions.

Transparency is also provided for in the Electoral Code of the Republic of Albania, which expressly stipu­lates:

Electoral entities are free to present their electoral programs in any legal form and manner.

The Code of Administrative Procedures operates on the basis of the principle of information, according to which every person has the right to request public information related to the activity of a public body, without being obliged to explain the reasons, in accordance with the legislation in force regulating the right to infor­mation.

Law on Public Notification and Consultation and the impact of Law No. 119/2014 “On the Right to Information”

Law No. 146/2014 “On Public No­tification and Consultation” establish­es the procedural rules that must be implemented to guarantee transparen­cy and public participation in policy-making and decision-making process­es by public bodies. Within the framework of the implementation of this law, the Electronic Register for Public Notification and Consultation (ERPC) has also been created, which is a portal that serves as a central con­sultation point, through which access is ensured and the possibility of com­munication is offered to all interested parties with the public body.

This form ensures and strengthens equality in terms of access to infor­mation and services, taking into ac­count the specific needs of certain persons or groups⁷. Not every act of public decision-making is subject to public consultation⁸.

Law No. 119/2014 “On the Right to Information”

This is the basic law that regulates the right to information in Albania, regulates the right to access infor­mation produced or held by public authorities, and aims to guarantee the public’s access to information, within the framework of exercising individu­al rights and freedoms in practice, as well as forming views on the state of the state and society⁹. This law pro­vides for the obligation of every pub­lic administration institution at the central and local level. Persons who do not respect the right to information are sanctioned with a fine by the rele­vant authority. The law has created space to ensure a transparency that was not even imagined before. It is in the interest of the entire society that this law becomes the best example of a weapon given to the public to fight precisely its manufacturer, with the aim of cleansing it of every corrupt cell¹⁰.

Regulation of the Right to Information in the European Union

Transparency is one of the funda­mental principles of the EU. It re­quires the EU to disclose information on policy-making and planned spend­ing and to respect the principle of freedom of information. These princi­ples are enshrined in the EU treaties¹¹. The right to access the acts of the in­stitutions was initially recognised by Declaration No. 17 annexed to the Maastricht Treaty, through which the Commission is obliged to take measures to increase citizens’ access to information held by the institutions. In order to implement this declaration, the Commission and the Council adopted a Code of Conduct on public access to documents¹².

Article 10 of the Treaty on European Union provides that the de­cision-making process must be trans­parent and brought “as close as possi­ble to the citizen”. According to Arti­cle 11, both citizens and representa­tive associations must have the oppor­tunity “to make known and publicly exchange their views in all areas of  Union action”. The Treaty on the Functioning of the EU extends the scope of these points by stipulating that the EU institutions are required to act publicly and to ensure that natural or legal persons residing or having their registered office in an EU coun­try have access to documents (Article 15). Freedom of information is not unlimited. The real limits of this free­dom are set out in principle in Article 10 of the European Convention on Human Rights, which states: “2. The exercise of these freedoms, since it carries with it duties and responsibili­ties, may be subject to such formali­ties, conditions, restrictions or sanc­tions as are provided by law and are necessary in a democratic society”¹³.

Conclusions

Considering the great challenge facing Albanian society and our state, the major objective of integrating into the European community is inevitable. Highlighting the need for high stand­ards for transparency, standards that have been established in European Union countries, respect for funda­mental human rights, the right to good administration of information and ac­cess to official documents.  With the issuance of the new law on the right to information, the legal regime of the right to information has been im­proved. Promoting and protecting the freedom to seek, receive, publish and disseminate information related to corruption¹⁴.

Access to information has long been recognized as a prerequisite for transparency and accountability of governments to voters and taxpayers, for consumers’ ability to make in­formed choices, and for enabling citi­zens to challenge mismanagement and corruption. This has led to a growing number of countries adopting right-to-information laws in the last two dec­ades¹⁵.

Freedom of information appears in two aspects: the freedom to be in­formed and the right to seek infor­mation¹⁶ Freedom to communicate is legitimized so that the public can freely participate in political and pub­lic activities.” Despite the tendency to close off to the public, studies have demonstrated the importance of the independent existence of two autono­mous rights, although very closely related, for the very fact that the right to information is the basis for forming a correct public opinion as a necessary component to transfer “the formation of political consciousness from tradi­tional places to the media field” and as “the basic principle of political pro­cesses in representative democracies¹⁷. The right to information appears in the dual meaning of subjective situations consisting of the freedom to inform and the freedom to be informed; in­stead, as regards the second, it is an expression that can be used to specifi­cally indicate a subjective situation that derives from the right to infor­mation such as the freedom to receive information¹⁸.

Is public consultation and infor­mation in Albania a genuine exercise of participatory democracy or simply a facade? By making comparisons with the conception of this process in different European countries, the re­port presents figures to understand to what extent public participation in decision-making processes is wel­comed by the government. In essence, it is noted that public consultation and information in the last two years is not of interest to the government, but also to the public itself. A large number of drafts are not consulted at all, while for another part of the consultations are only facades. In a small number of cases, consultation has been valuable for both parties, but the number of organizations that are usually engaged is small, while the general public has not shown interest. The electronic register created to facilitate public communication with the government has not been used¹⁹. Every public body is obliged to take all measures to create the opportunity for citizens and interested parties to participate in the consultation and information process.

Notes

• Hollyer, J. R., December 2013 Article.

https://hrvtransparency.org/JRHPersonal/PARevisionsTransparencyDraft3.pdf

• Law No. 119/2014 ON THE RIGHT TO INFORMATION.
• Ibidem.
• Huss, M. Beke, J. W. Brigitte, Slot Handbook of good practices in the fight against corrupsion, 15 February 2023 Europea Commission p. 25.
• https://www.usnews.com/news/best-countries/most-transparent-countries
• Anastasi, L. Omari, Constitutional Law, Dajti Publishing House, Tiranë, 2017, pp. 119-120.
• DECISION No. 47/2019 ON THE APPROVAL OF THE STRATEGY FOR LEGAL EDUCATION OF THE PUBLIC 2019-2023.
• Matlija, A. Kurti, E. Alexandridis, I. Dule, COMMENTARY of Law No. 146/2014 “On Public Notification and Consultation” “Res Publica” ISBN 978-9928-4337-3-2 March 2017, 2017.
• DECISION No. 47/2019 ON THE APPROVAL OF THE STRATEGY FOR LEGAL EDUCATION OF THE PUBLIC 2019-2023
• Matija, D., RESPUBLICA National Endowment Democracyfor Supporng freedom around the world, Botues: Qendra Res Publica, Tiranë, 2015, p. 66.
• Europea Unione https://european-union.europa.eu/principles-countries-history/principles-and-values/access-information_it
• E. Relly, M. Sabhainol, Perceptions of transparency of government poli­cymaking: A cross-national, study volum 26 Januar 2009 Article.
• Matija, D., op.cit., p. 44.
• Coliver, THE importance of the right of access to information held by public authorities, and the need for the united nations to take steps to further elaborate, codify, protect and promote this right, Microsoft Word – 20061108 Warsaw Conf Panel 2_Coliver.doc
• Matija, D., cit., p.7.
• Baraku, The right to information and the means of its realization in the republic of Albania, Tiranë, 2012, p. 11.
• Po aty.
• Libertà di informazione e principi costi­tuzionali https://www.ibs.it/pdf/9788892113329.pdf
• https://www.publeaks.al/konsultimi-publik-ne-shqiperi-2017-2018/

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Europea Unione https://european-union.europa.eu/principles-countries-history/principles-and-values/access-information_it

https://www.ibs.it/pdf/9788892113-329.pdf

HUSS, O., BEKE, M., WYNARSKI, J., (2023), Brigitte Slot Handbook of good practices in the fight against corrupsion, 15 February 2023 Europea Commission p. 25.

James, R., Hollyer, B., Rosendorff, P. and Vreeland, J. R., December 2013 Article.

https://hrvtransparency.org/JRHPersonal/PARevisionsTransparencyDraft3.pdf

Jeannine, E., Sabhainol, M. R., Perceptions of transparency of government policymaking: A cross-national, study volum 26 Januar 2009 Article.

LAW No. 119/2014 ON THE RIGHT TO INFORMATION Article 4 https://www.drejtesia.gov.al/wpcontent/uploads/2018/08/Ligj_119_2014_18.09.2014.pdf

LAW No. 119/2014 ON THE RIGHT TO INFORMATION https://www.drejtesia.gov.al/wpcontent/uploads/2018/08/Ligj_119_2014_18.09.2014.pdf

Liberta di informazione e principi costi­tuzionali