IBNA Analysis/Human rights or bearing the burden of the legalization law

IBNA Analysis/Human rights or bearing the burden of the legalization law

By Armando Mosho

The European Convention of Human Rights is that kind of treaty considered to be as the European Public Regulatory Order.
When we refer to the European Public Order, we mean the member states of the Council of Europe (where Albania is part of) non the European Union Countries. Being part of it, Albania arises several obligations regarding the European Convention on Human Rights, which is stipulated in the constitution, in the following articles:

Article 5: The Republic of Albania applies the obligatory International Law.

Article 17 of the Constitution of Albania on the European Convention provides:

– Restrictions of the rights and freedoms provided for in this Constitution may be settled by law for the public interest or for the protection of the rights of others. The restriction must be proportionate to the situation that has dictated it.

– These restrictions may not infringe the essence of freedoms and rights and in no case shall exceed the restrictions stipulated in the European Convention on Human Rights.

So based on these articles of the constitution, once a law is approved, you should check out if it is in line with International Law.
The European Convention on Human Rights occupies a special status in the Albanian legislation, being positioned neither over the constitution nor under it. Instead, it has equal power to the constitution.

The European Convention is the only treaty to be considered of same value with the constitution, because throughout the whole the constitution you will not find any other convention we refer to explicitly to the constitution. As cited above, Article 17, paragraph 2 of the Constitution stipulates that the Albanian Government can not go below the minimum of rights provides by the European Convention on Human Rights.

That is, the reflection of the convention in the Constitution means that those rights contained in the Convention should definitely be applied since they constitute the minimum standards, but meanwhile the Albanian lawmakers can only add defense arguments of the of human rights, which means that these rights can not be reduced, nor restricted.

At this point, the Albanian Government is obliged to make laws that emerge in enhancing human rights and not erasing all the rights instead, as in the case of the legalization law.

Article 122 of the Constitution of the Republic of Albania imposes an obligation on us to recognize the ratified International Agreements.

Any ratified International Agreement shall be part of the internal legal system after it is published in the Official Gazette of the Republic of Albania. It is implemented directly, except for cases it is not self-executing and its implementation requires issuance of a law. The amendment, completion and repeal of laws approved by a majority of all its members for the purpose of ratification of International

Agreements is carried out under the same majority.

An International Agreement ratified by law has priority over domestic laws that are not in line with.

The norms issued by an International Organization have priority compared to the right of the country, in case of conflict, if the participation agreement ratified by the Republic of Albania expressly contemplates direct application of the norms issued by this International Organization.

This article of the constitution, paragraph 1, points out all evil, anger and rage until the final implementation of a criminal project against the Albanian rightful owners.

The Albanian Government has ratified the European Convention on Human Rights in 1996 and published it in the Official Gazette in October 2010. So, if we remain strict to our laws, the convention should have not been applied, because we have clearly stipulated that after its publication in the Official Gazette, it becomes applicable and part of our domestic legislation.

It proved the contrary regarding the European convention of Human Rights because the convention has self-enforcing character, which means that once ratified, it becomes directly applicable, because most of the provisions of the Convention have a self-enforcing character. So, it means that adoption of a law to enter into force is not quite necessary.

Therefore, obligations for its implementation arose with the ratification of the convention in 1996. Why this time gap, from ratification to publication in the Official Gazette, what’s the reason?

Despite the delay of its publication in the Official Gazette, any case filed for trial at the European Court of Human Rights, it has been considered by its judges that Albania has ratified the convention in 1996, and as a ratifying country, we shall feel obligations arising for us.

At the moment you are a high contracting party, you must enforce obligations regarding rights and freedoms. Therefore, either it is published or not  in the Official Gazette, the European judges do not care at all.

So, my question is: how is it possible for the law on legalization to be produced, since we have so many articles in our constitution to implement international conventions regarding the freedoms and fundamental human rights?

The Law produced by the government of that time is in obvious full violation with human rights and fundamental freedoms of the rightful owners, blindly voted in parliament in violation of any International Convention, and then, as the cherry on the cake, here we have the attitude of the Constitutional Court which considers the violation of the rights of the rightful owners on property possession, as public interest of burglars. Have our dear Constitutional Court members ever posed the question, what does a German lawmaker think of this big invention of curs?
Seen in this light of this point of view, the Legalization Law is a law that interferes with many articles of the constitution and international agreements ratified. This law shall stand for as long as those who have direct interests are still in power and certainly in order for the project launched to engulf properties to its rightful owners could not continue much longer. I am quite confident that we are not far away from the point where all the involved actors in this dirty game will be found responsible for the situation and colossal damage caused to our homeland…
I must emphasize that all the property cases filed to the European Court of Human Rights constitute 80% of the cases that Albania has addressed this Court. The invoice generated by these cases is tremendously enormous for a small country like Albania. Hence, the Albanian State is unable to pay such bills. Note the current today’s situation with all the electricity payments, after having wondered around for decades? It will not take long, and those people who have constructed illegal buildings in the country will soon hear the state authorities knocking on their doors, either to pay every due single penny or vacate the occupied space. Why would this happen?
The Strasbourg Court decisions in favor of the Albanian owners pose a serious threat to Albania, because if you are a country that consistently breach the human rights, the consequence is exclusion from the Council of Europe. Albanian politicians know very well the consequences of it, and yet they keep hiding the truth and decorate the reality with promises of legalization, such legalization which have no legal value, as above analyzed have, since they are in absolute severe violation of human rights, and doubtfully will be undone further on.
May God save Albania!

* Financial expert in Albania, politician