'Castle on Justice': New Draft Law on the Bank of Albania Received with Criticism

A new draft law for the Bank of Albania, designed to align domestic legislation with that of the European Union, has exceeded its purpose by providing a criminal shield for the institution's leaders by strengthening immunity from criminal prosecution and arrest measures.

The main concern is related to Article 72 of the draft law, which prohibits any form of arrest or personal or residential search of the Governor of the Bank of Albania and the Deputy Governors without prior authorization from the Constitutional Court. According to the draft, if the latter is not expressed within two weeks, the prosecution's request is considered rejected.

Although the accompanying report repeatedly emphasizes that these changes are being made within the framework of approximation with the "acquis communautaire" of the European Union, economic experts and lawyers raise the alarm that "a political fortress" is being created that places the Bank of Albania above justice and national transparency laws.

Economic expert Zef Preçi analyzes this request as an attempt to protect oneself from accountability, which according to him is camouflaged by the approximation of legislation with the EU. Preçi sees this attempt in line with the government's spirit to strengthen immunity after the "Balluku" case, which circulated a list of high-ranking positions that were not affected by the suspension from office, including the governor of the Bank of Albania.

“The alibi of approximation of legislation does not work in this case,” Preçi said, bringing to mind a decision by the European Court of Justice on the governor of the Bank of Latvia, whose arrest was upheld despite a challenge by the European Central Bank.

The establishment of the Constitutional Court as a "filter" for the actions of the prosecution raises fundamental questions of criminal procedure for lawyers as well. After being informed about the draft law, lawyer Ervin Metalla notices an open contradiction in this effort.

"I do not believe that the need for independence justifies this increased protection, as long as the court is in any case the one who will determine the measure. Not only that, but it seems that the decision on arrest is made by the Constitutional Court, which is nonsense," Metalla told BIRN.

He also believes that this provision in the draft law on the Bank of Albania is triggered by concrete events that occurred in Albania, but that have been verified in the judiciary.

“…I don't think the fear of a judge making a 'mistake' should be resolved in this way,” Metalla added.

The same line of criticism is shared by constitutionalists, who spoke to BIRN on condition of anonymity. They assessed that this protection for the Governor and his deputies was “not foreseen in the Constitution” and that it contradicted the spirit and legal reforms undertaken earlier, where the country is moving towards reducing immunity or special protections.

"This proposal comes in the course of avoiding the personal responsibility of the heads of institutions. The governor is indeed included in the Constitution (Article 161) as a subject who is elected by the Assembly upon the proposal of the President, but granting immunity seems an unsupported approach, since the confirmation of the measure by the ordinary court is more than reasonable. Moreover, the extension of a guarantee to deputy governors also speaks for itself," said a former member of the Constitutional Court.

A representative of the Bank of Albania, a member of the group of experts who worked on drafting the law, rejected the criticism, also requesting anonymity. According to the member, it is not about immunity, as the criminal investigation could continue regardless of arrest or not, but about protection from arbitrariness to ensure financial stability in the country.

The proposals were also defended as having been consulted with the International Monetary Fund and the Bank of Luxembourg.

The new legal provisions (Article 68) allow the Bank of Albania to declare a series of information confidential or secret and prohibit the Commissioner for the Right to Information from assessing it differently or ordering its publication. The drafter insisted that this was a practice of EU countries, but BIRN found that these confidential decisions of the European Central Bank are nevertheless subject to review by the European Ombudsman upon request.

Beyond the legal debate, Preçi says that the new law does not guarantee any independence of the Bank of Albania, since the latter, according to him, is subordinated to the government.

"With its monetary policies, this institution has served the next government best, to the extent that, at certain times, the Central Bank has resembled a directorate of the Ministry of Finance," he ironically said, noting that the bank had no independent reaction even when the country "was drowned by the colossal flow of informal and criminal money."/ BIRN