No. 9367 dated 7.4.2005
ON THE PREVENTION OF CONFLICTS OF INTEREST IN THE EXERCISE OF PUBLICFUNCTIONS
(as amended with Law no.9475, dated 9 February 2006, with Law 9529, dated 11 May 2006, with Law no.86, dated 18.09.2012, with Law no.44, dated 24.04.2014)
Pursuant to Articles 78 and 83 point 1 of the Constitution, on the proposal of the Council of Ministers,
OF THE REPUBLIC OF ALBANIA
D E C I D E D:
The purpose of this law is to guarantee an impartial and transparent decision-making in the best possible interest of the public and of its trust in public institutions through preventing conflicts between public interests and private ones of an official in the exercise of his functions.
The object of this law is the definition of rules, means, manners, procedures, responsibilities and competencies for the identification, declaration, registration, treating, resolution and punishment of the cases of conflict of interests.
In this law, the following terms have this meaning:
1. “Conflict of interest” is a situation of conflict between the public duty and the private interests of an official, in which he has direct or indirect private interests that affect, might affect or seem to affect the performance, in an incorrect way of his public responsibilities and duties.
2. “Performance of duties and responsibilities in a correct way” is the way of performing duties and responsibilities that take material form in a decision-making, in which the public official acts in conformity with the law, with honesty, impartiality, responsibility, dedication, on time, in the defense, in every case, of the public interest and the lawful rights of private persons, as well as for the preservation and strengthening of the credibility and dignity of the institution where he works, the state in general, and the figure of the official.
3. “Performance of duties and responsibilities in an incorrect way” is the case when at least one of the requirements of point 2 of this article is not met due to and only because the possible influence of the private interests of the official according to point 1 of this article.
4. A conflict of interests defined in point 1 of this article includes several other definitions of different types of its appearance, as follows:
a) “actual conflict of interest” is a situation in which the private interests of the official affect, have affected or might have affected the performance of his official duties and responsibilities in an incorrect way;
b) “apparent conflict of interest” is a situation in which the private interests of the official seem, on their face or by their form, as if they have affected, affect or might affect the performance of his official duties and responsibilities in an incorrect way, but, in fact, the effect has not occurred, is not occurring or cannot occur;
c) “potential conflict of interest” is a situation in which the private interests of the official might in the future cause an actual or apparent conflict of interest to appear, if the official were to be included in certain duties or responsibilities;
ç) “case by case conflict of interest” is a situation with a conflict of interest, in one of the three above types, which appears case by case and is related to a particular decision-making;
d) “Continuing conflict of interest” is a situation in which a conflict of interest might appear frequently and/or often in the future.
5. “Active ownership of shares or parts of capital” is the full exercise of all the rights that come from ownership of shares or parts of capital.
6. “Passive ownership of shares or parts of capital” is a situation in which the owner keeps the right to benefit from the civil fruits of ownership, but may not, himself, exercise any other civil action over this property. All other actions (administration, possession, alienation etc.) are performed by a person trusted by the owner, based on an agreement entered into between them that specifies the criteria for enjoying the fruits of the assets, as well as the other essential rights and obligations. The trusted person does not discuss any opinion or any information with the owner and is not affected by him for the performance of these actions with the assets. The trusted person should act only for the good of the preservation and growth of the assets, with the same motivation as if these actions were performed by the owner himself. The restrictions on selecting the trusted person are given in this law. In any case, the parties retain the right to dissolve this agreement. The owner has the right to retake at any time the rights to perform other civil actions with the ownership when, according to this law, the conditions that dictated this action no longer exist. The other rights and obligations not mentioned above are regulated by the Civil Code of the Republic of Albania.
7. “Official” is every person who performs duties and exercises public functions according to the definition of letters “a”, “b” and “c” of point 1 of article 4 of this law.
8. “Public institution” is every subject defined in letters “ç” and “d” of point 1 of article 4 of this law.
9. “Superior of an official” is another official, an organizational unit within the public institution, the highest director of the public institution or an organ of this institution that has the competency directly to appoint, manage, order, evaluate or control this official or to which the competencies designated for the implementation of this law have been given.
10. “Superior institution” is a public institution (or organ of a public institution) that, according to the laws in force, has the competency to regulate, appoint, manage, order, evaluate or control another public institution (or its organ) where an official performs his duties and exercises his competencies. The superior role is exercised in conformity with the laws that regulate the organization and functioning of the public institutions. Regardless of whether a superior institution may have one of the above competencies, it may not be considered such if this would lead to the infringement of the constitutional principles of the separation of powers and institutional autonomy.
11. “Person related to an official” is every natural or legal person who turns out to have or to have had ties of interest with the official, a property interest or a non-property personal interest according to article 5 of this law.
12. “Principal of proportionality” is the relation between the importance of the duties, responsibilities and competencies of an official or public institution and the measures for the prevention of a conflict of interests, a relation in which the more important the duties, responsibilities or competencies of the official are, than more are the restrictions of the interests of the official and more severe are the punishments, and the rules, manners, means and procedures for the prevention of conflict of interest by the public institutions are defined in an even more detailed manner.
13. “Natural commercial person” is used in the meaning defined by the commercial legislation.
Field of Application
1. The provisions of this law define rules that are obligatory for implementation by:
a) every official, when he takes part in a decision-making for:
i) administrative acts and contracts;
ii) acts of the judicial organs, notarial acts, acts for the execution of executive titles by the execution organs and acts of the prosecutor’s office;
iii) normative acts, and only those laws that create legal consequences for individually specified subjects;
b) every official of the state institutions, central or local, and every employee of the subjects defined in letter “d” or representatives of the subjects specified in letter “ç” in the subjects mentioned in letter “d,” when he takes part in a decision-making about contracts that create legal civil relations with these subjects as a party;
c) every official or employee who is in positions, has responsibility, performs duties or exercises competencies of concrete types expressly defined in this law in one of the subjects of letter “ç” or “d” of point 1 of this article;
ç) every state institution, central or local;
d) every organ or subject created and/or under the subjects of letter “ç,” including state or local enterprises, commercial companies with a controlling participation of state or local capital, non-profit organizations and other legal persons controlled by the subjects of letter “ç” or by the subjects of this letter themselves;
dh) related persons, to the extent and in the manner defined in this law.
2. For the purposes of this law:
a) decision-making for an act will be considered, in every case, the last moment of the decision-making process during which the final content of the act is decided;
b) decision-making for an act will also be considered those preliminary moments of decision-making according to letter “a” of this point, which are fundamentally important and determinative for the final content of the act;
c) An official has fundamental and definitive competency for any act if his participation in, effect on and position in the decision-making for this act according to letters “a” or “b” of this point determine the content of the act.
1. The private interests of an official are those interests that conform with, contain, are based on or come from:
a) property rights and obligations of any kind;
b) every other legal- civil relationship;
c) gifts, promises, favors, preferential treatment;
ç) possible negotiations for employment in the future by the official during the exercise of his function or negotiations for any other kind of form of relationships with a private interest for the official after leaving the duty performed by him during the exercise of duty;
d) engagements in private activity for the purpose of profit or any kind of activity that creates income, as well as engagements in profit-making and non-profit organizations, syndicates or professional, political or state organizations and every other organization;
i) of family or cohabitation;
ii) of the community;
v) recognized [relationships] of friendship or enmity;
e) prior engagements from which the interests mentioned in the above letters of this article have arisen or arise.
2. The restrictions of private interests specifically defined in this law are applied together with the restrictions of the same private interest expressly defined in another law, according to the principle that the restriction applied is the one that is more severe.
3. If in this law, in connection with a specific private interest of an official, no quantitative limit of this interest has been defined, while in another law, with the purpose of preventing a conflict of interests, the same interest is expressly restricted according to a quantitative boundary, then that limitation is also applied for this law, and vice-versa.
4. Every kind of private interest of an official of those defined in this article, every tie or inter-relationship between two or more of them is considered a cause for the emergence of a conflict of interest if because of this interest or because of the going outside of the obligatory restrictions of this interest, a situation with a conflict of interests appears, according to the definitions of points 1 and 4 of article 3 of this law.
Manner of Performance of Public Duties and the Obligation to Prevent Conflicts of Interest
1. On his election or appointment and on an on-going basis, an official has the duty to prevent and to resolve himself, as soon as possible and in the most beneficial manner possible, every situation of his conflict of interests. If the official is not convinced of the existence of a conflict of interests connected to him, he should consult with his superior as soon as possible.
2. Every superior and superior institution should take all necessary measures to prevent and resolve the cases of conflict of interest.
PROCEDURES AND MEANS FOR IDENTIFYING AND REGISTERING
CONFLICTS OF INTEREST
Identification and Registration of Interests under Conditions of Case by Case Conflicts of Interest
Case by Case Declaration of the Private Interests of an Official
1. Every official, in the exercise of his public duties or the exercise of his competencies, on the basis of his knowledge and in good faith, is obligated to make a self-declaration in advance, case by case, of the existence of his private interests that might become the cause for the emergence of a conflict of interests.
2. The case by case declaration of private interests is done by the official whenever this is requested by the superior or by the superior institution. As a rule, the declaration should be requested and made in advance. When this is not possible or when it has not happened, the declaration may be requested and made as quickly as possible.
3. The self-declaration or the declaration on request is as a rule done in writing, when the official is included in a decision-making for an act. The declaration in writing is not essential when verbal declarations of the official can be registered and documented, according to the procedures defined by law and/or in the internal rules of the public institution where the official exercises his functions.
4. A declaration of interest for the cases defined in letter “dh,” “iii,” “iv” and “v” of point 1 of article 5 of this law, as well as the membership in political organizations within the meaning of letter “d” of point 1 of article 5 of this law, is done only with the free will of the official.
Identification of Private Interests of an Official by Third Persons
The offering of information on private interests of an official is:
a) a duty of every other official who has knowledge, in particular of his superior;
b) a duty of every public institution that has knowledge;
c) the right of interested parties who are affected by the actions of the official;
ç) the right of every person who has knowledge and who has an interest in general and which complies with the purpose of this law.
Other Sources of Information about Private Interests of an Official
Other sources of information about private interests of an official may also be
a) public or private registers kept in accordance with the legislation in force;
b) data from the media;
c) data or complaints from the public;
ç) every other lawful source.
Active Role of Public Institutions in Collecting Information about the Private Interests of an Official
1. The authority or structure responsible for the implementation of this law according to article 41 point 2 of it, in conformity with the amount, manner and order defined in this law and/or in sub-statutory acts and internal rules of a public institution issued in implementation of this law, is authorized, in the name of the respective institution, actively:
a) to collect from lawful sources of information all data about the private interests of an official;
b) to accept information obtained in a lawful manner;
c) to verify the credibility of this information;
ç) to notify the official the information obtained about him;
d) to give the official the possibility to prove the contrary if the official so requests;
dh) to record the private interests of the official.
2. No later than 30 days from the entry into force of this law, or from the date when work relations begin at a public institution, every official is obligated to issue an authorization in favor of the public institution where he exercises his functions, through which he authorized this institution to check and obtain personal data about the official, wherever they are recorded. This authorization also has the same value for every superior institution.
2/1. An institution becoming aware of the personal data of an official shall be bound to maintain the confidentiality and reliability even after the completion of this function, unless otherwise provided by the Law.
2/2. The contents of the authorization shall be in compliance with the principles of the personal data protection.
3. According to the hierarchy, every superior institution is also authorized actively to perform all the actions defined in point 1 of this article for the chairman of the other institutions in its jurisdiction.
Case by Case Registrations of Conflicts of Interest
For every case of the appearance of a case by case conflict of interests, the identity of the official, his private interests, the reason for a conflict of interest, the essence of the conflict, the interested parties, the source of the data, the manner in which it was received and verified, and the decision taken based on the data, also including the decisions taken by the superiors, the superior institutions or the courts, are registered.
The registration is done by the authority responsible according to article 41 of this law.
The Right of the Public to Become Aware of Registrations about the Private Data of Officials, in Cases of a Case by Case Conflict of Interests
2. For purposes of an administrative proceeding, the registrations of interests are put at the disposition of the parties to the proceeding in a reasonable time, according to the time periods and procedures defined in the Code of Administrative Procedures.
3. The provisions of points 1 and 2 of this article are not applicable to meetings of the Council of Ministers or closed meetings of the Assembly, the council of a commune or municipality and other central or local collegial organs.
4. The registrations are always available in a judicial proceeding or arbitration or for a parliamentary investigative process.
l. The definitions of point 2 of article 7 of this law are not applicable to the President of the Republic, except in cases when he exercises functions as a member of a collegial organ or when related with a judicial proceeding against him.
2. For judicial proceedings and parliamentary investigations, the identification and registration of interests according to this chapter is done only for those actions that are performed before and outside of a concrete civil judicial proceeding, a criminal proceeding or a parliamentary investigation. Within the proceeding, the identification and registration of the interests is performed according to the rules defined, as the case may be, in the codes of civil and criminal procedure, or the legislation that regulates the process of a parliamentary investigation.
Periodic Registration and Identification of Private Interests
Joint Provisions for the Two Systems of Identification and Registration of Interests
Connection between the Two Systems and the Right of Information
1. Declaration of interests, according to section 1 of this Chapter and all accompanying documents are official documents. The data obtained from the making of a declaration according to this law are available to the public, in conformity with law no. 8503, dated 30 June 1999 “On the right to get information about official documents”.
2. The case by case system and the periodic system of the identification and registration of interests are established and applied in such forms and means that they assist one another for:
a) the most fruitful prevention possible of conflict of interests;
b) the fullest and easiest access possible for the public to the data of the registered interests.
Protection for Providing Information
Every official or every subject who offers well-grounded information about cases of conflicts of interests not declared by the subjects of this law earns, as the case may be, a special administrative protection as follows:
a) the official about whom the information is given may not exercise any administrative competency with punitive effect over the informing subject nor be an obstacle for the earning of lawful rights by the latter because of the giving of the information;
b) when the taking of a measure against the subject who informs is determined by another legal reason, it is taken only by an official who is in a vertical relationship of dependency over the official about whom the information was given, except when the administrative measure is taken under the conditions of article 37 point 6 of this law.
RESTRICTION OF PRIVATE INTERESTS FOR THE PREVENTION OF CONFLICT OF INTERESTS IN PARTICULAR QUESTIONS AND CASES
Restrictions of the Private Interests of an Official for Preventing Case by Case Conflicts of Interests for Particular Instances
Prohibition of Entering into Contracts
1. No individual, when he is equated with an official holding one of the functions defined in Chapter III, Section 2 of this law, judges and prosecutors at the first instance and appeal courts, and no commercial company, partnership or simple partnership, where this official possesses, actively or passively, shares or parts of capital, at whatever amount, cannot enter into a contract or sub-contract with any public institution.
With regard to officials of medium management level provided for in Article 31 and the officials provided for in Article 32, Chapter III, Section 2, of this Law, the prohibition in accordance with the first paragraph of this point shall apply only in terms of entering into contracts within the territory and jurisdiction of the institution where the official works. This prohibition shall apply even where a subordinate institution is a party.
2. When the official is mayor or deputy mayor of a municipality or commune or the chairman of a regional council, member of the respective council or official of a high management level of a unit of local government, in the relative meaning of that term for the relevant laws, the prohibition according to point 1 of this article, because of the private interests of the official, specified in this point, is applied only in the case of entering into contracts, as the case may be, with the municipality, commune or region where the official exercises functions. This prohibition is applied even in the cases of entering into contracts with public institutions, under the dependency of this unit.
3. Notwithstanding the definitions in points 1 and 2 of this article, a contract may not be entered into between the public institution and any public institution under this institution on the one side and a natural, civil or commercial natural person, or a legal person, or any other form of partnership on the other side, when the following conditions are met at the same time:
a) the official, that exercises his function in this public institution, has fundamental and definitive competence in the decision-making process in the evaluation of the offerors and the offers and the determination of the terms of the contract;
b) the official has private interests according to the definition of article 37 of the Code of Administrative Procedures and/or article 709 of the Civil Code or has an interest in the types of interests specified in points 1 and 2 of this article.
4. Excluded from the prohibitions of points 1, 2 and 3 of this article are cases when the entering into the contract:
a) relates to the employment of the official himself in the public institution or with his legal status;
b) relates to the receipt by the official of a compensation that is offered by the public institution or bodies and subjects created by or under the control of the public institution, when the services have been contemplated in the object of activity of the public institution, and on the condition that the service is not given to the official in a manner that favors him or as preferential treatment in relation to the others;
c) is based on separate laws for public purposes or for special treatment of various categories of officials;
ç) is essential for the performance of the public function and there is no other alternative;
d) relates to a gift, favor or preferential treatment, in any case without counter-payment that the subjects defined in point 1 letters “a” and “b” and in point 2 of this article make in favor of a public institution.
5. In the exceptional case of letter “ç” of point 4 of this article, the public institution that enters into the contract, according to the laws and sub-statutory acts that regulate its functioning:
a) asks for the consent of the nearest superior institution;
b) notifies the High Inspectorate and makes the contract public, in the absence of the institution or when receiving the consent conflicts with the principle of the independence of the institutions.
6. For the officials defined in article 30 of this law:
a) it is prohibited to enter into contracts between the official, whether as a civil or natural commercial person, and any person in relation to whom the official has an interest of the kind defined in letters “a”, “b”, “c”, “ç”, “d”, “dh”, “i” (up to the second level) and “e” of point 1 of article 5 of this law, on the one side, and commercial operators-subjects who exercise activity in the sphere of the jurisdiction or influence of this authority, on the other side;
b) excluded from this prohibition are contracts entered into that are related to the receipt of services by the official or related persons from these operators and supplies that the related persons may give to these operators, but on the condition that the service is not given to the official or to persons related to him or the supplying of the latter is not done in a special manner or with special or individually preferential treatment because of this connection, in relation to their other clients and/or beneficiaries. If a contract is entered into in conformity with this permission, the non-opposition of the respective regulatory entity is always required in advance, based on an official and reasoned request, and the contract is always made public by the regulatory entity itself. The absence of a response within 30 days by the regulatory entity is considered non-refusal.
Prohibitions on Receiving Income Because of a Particular Function
1. It is prohibited for every official to own, in an active manner, shares or parts of capital, or any other kind of benefit that does not come from passive ownership, from commercial companies that have been exempted from or have received reductions in customs or tax obligations, or when these companies exercise activity in free zones, if the official has fundamental and definitive competency in granting any of the above-mentioned treatments to the company.
2. An official who is the representative of a public institution in the ownership of shares or parts of the capital of commercial companies, during the exercise of this function, is prohibited from:
a) the receipt, directly or indirectly with the intermediation of third parties, of every financial benefit, including the creation of a future financial resource, that is related to or gained because of his duty as representative;
b) the acceptance in his favor of gifts or parts of capital from the company, its members or organs;
c) the purchase of parts of capital, shares or assets of these companies;
ç) the direct or indirect benefits from suppliers or clients of these companies.
Prohibition of Receiving Gifts, Favor, Promises or Preferential Treatment
1. It is prohibited for an official to seek or to accept, directly or indirectly, gifts, favors, promises or preferential treatment, given because of his position, from an individual, natural person or private legal person.
2. Excluded are only the cases defined in acts of the competent organs that permit the receipt of gifts or preferential treatment for reasons of State protocol.
3. An official to whom gifts, favors, promises or preferential treatment is offered according to point 1 of this article should:
a) refuse them and, if the offer was made without his knowledge or in advance, return it to the offeror or, if this is impossible, officially submitting it to his superior or to the nearest superior institution;
b) try to identify the person who offers them and his motives and interests;
c) in any case, immediately inform his superior or the nearest superior institution about the gift, favor, promise or preferential treatment offered or given, the identity of the offeror, when he can be identified, and the circumstances, as well as stating his point of view about the possible reasons for this event and its relations to his duties as an official;
ç) continue the exercise of duty normally, especially for the problem for which the gift, favor, promise or preferential treatment was offered, and continually keep his superior informed about every possible development;
d) if the offering or granting of the above-mentioned goods is related to the commission of a criminal offense, report it to the competent organs for criminal prosecution.
Restriction of the Interests of Persons Related to an Official
1. The circle of persons related to the official, by way of applying the prohibitions set out in Articles 21 and 22 of this law, consist of the spouse, cohabitant, adult children and parents of the official and those of the spouse and cohabitant.
2. In addition to those defined in point 1 of this article, the circle of persons related to an official, in implementation of article 23 of this law is also broadened to every natural or legal person who, in connection with the gift, favor, promise or preferential treatment, plays the role of intermediary or person who exchanges the interests arising from this action.
3. The prohibitions and restrictions for an official defined in this section are also applicable to persons related to him, in conformity with the above points of this article.
4. The restrictions on ownership of shares or parts of capital are also the same as those defined in article 21 of this law:
a) for every person related to the official, each separately;
b) for the entirety of the interests of the official and persons related to him;
c) for the entirety of the interests of the persons related to the official.
5. The prohibitions and restrictions of this section are not applicable to persons related to persons related to an official.
Indirect Possession of Interests
1. By legal persons mentioned in this section are meant the legal persons resident and non-resident in the Republic of Albania.
1. The prohibition of entering into contracts according to each case of article 21 of this law is also applicable to the case when owning shares or parts of capital is related to a commercial company, partnership or simple company, which owns shares or parts of capital in a commercial company, partnership or simple company, when the latter appears to be party of entering into a contract.
Restriction of Private Interests for the Prevention of Particular Cases of a Continuing Conflict of Interests
1. The types and restrictions of private interests of the categories of officials defined in this section do not exclude the types and restrictions defined in other laws for these categories of officials, applied for the same purpose, but, in any case, the more severe restriction is applied, in conformity with the definitions of article 5 of this law.
2. For other officials not dealt with in this section, restrictions defined in separate laws for the same purpose are applied.
When by law it is specified that these officials may not perform any private activity, this also means the prohibition of the ownership in an active manner of shares or parts of capital in commercial companies under those conditions for which private activity is prohibited.
3. By legal persons mentioned in this section are meant all legal persons registered in the territory of the Republic of Albania according to the legislation in force
4. When an official possesses interests connected to natural or legal persons registered outside the territory of the Republic of Albania, which own or control a legal person registered in the Republic of Albania, and from which, in an indirect manner, are created rights over this person, the restriction of the interests of the official and/or the legal person owned or controlled are applicable to the extent that this indirect action will give the same result.
Restrictions for a Member of the Council of Ministers and a Deputy Minister
The Prime Minister, Deputy Prime Minister, a minister and deputy minister:
a) may not be managers or members of the management organs in profit-making and not-for-profit organizations, syndicates or professional organizations and every other organization, with the exception of political and state organizations as well as cases when such a position is dictated because of the function.
b) may not exercise private activity that creates revenues in the form of a natural commercial person, partnership of natural commercial persons of any form, or the free professions of advocacy, the notarial profession, licensed expert, or consultant, agent or representative of the organizations defined in letter “a” of this article, nor be employed full time in another duty;
c) may not own in an active manner shares or parts of capital of a commercial company, regardless of the field of its activity.
Restrictions for a Deputy
a) may not be a manager or member of the management organs of profit-making organizations;
b) may not exercise private activity that creates income in the form of a natural commercial person, partnership of natural commercial persons of any form, the free professions of advocacy, the notarial profession, licensed expert or consultant, agent or representative of the organizations defined in letter “a” of this article and may not be employed full time in another duty;
c) may not possess, in an active manner, any share or part of capital of a commercial company, if it turns out to have a dominant position in the market.
Restrictions for Mayors, Chairmen of Communes and Chairmen of Regional Council
The Mayor, Chairman of Commune and Chairman of Regional Council cannot:
a) be chairman of profit-making organizations;
b) be members in managerial organs of a commercial company or in a non profit-making organization, carrying out its activity within the territory of its jurisdiction;
c) carry out private activity, generating income in the form of the natural commercial person, partnership of commercial natural persons of any form, free profession of advocacy, notary, private bailiff, administrator of bankruptcy, licensed expert, as well as consultant, agent or representative of organizations, set out in letter “b” of this Article, and they cannot be employed full-time in any other office;
ç) possess actively shares or parts of capital in a commercial company carrying out its activity within the territory of their jurisdiction.”
Restrictions for a Member of the Organ of a Regulatory Authority
For a member of organ of a regulatory authority or for the protection of competition, including the Governor of the Bank of Albania, the Deputy Governor and the members of its Supervisory Council:
a) all the restrictions and permissions defined in article 31 of this law are applicable;
b) the condition is also applicable that such an official may not possess any right, directly or indirectly, within the meaning of article 25 point 2 of this law, in connection with any subject that exercises activity in the sphere of the jurisdiction or influence of this authority, including the complete prohibition of ownership, in an active or passive manner, of shares in those companies.
Restrictions for an Official of the High and Medium Level, Director of the Public Administration, Other Public Institutions, the State Police and the Armed Forces of the Republic of Albania
The official of a high and medium management level according to the civil service legislation, the official of a high and medium management level of the State Police and Armed Forces under the system of ranks and tasks applicable for these public institutions, the officials of a high and medium management level equated to the officials in the positions of director of directorate, director of general directorates and chairmen of regulatory entities (as well as those under Article 30 of this Law) or other institutions of the public administration, that are not part of the civil service, as well as the Prefect:
a) may not be managers in profit-making organizations;
b) may not be members of the management organs of a commercial company or a not-for-profit organization, when they exercise activity in a sphere that is the same as or overlaps with the sphere of jurisdiction of the official and his competency to act, with acts issued by him, or when the official has a fundamental and definitive role in the issuance of these acts, with acts that create legal consequences, benefits or costs for those companies or organizations or other companies or organizations that cooperate or compete with the company in question, excluding cases when this position in the company or organization comes because of the function and/or status;
c) may not exercise private activity that creates revenues in the form of a natural commercial person, partnership of natural commercial persons of any form, the free professions of advocacy, the notarial profession, licensed expert or consultant, agent or representative of the organizations defined in letter “a” of this article, and may not be employed full time in another duty;
ç) may own, in an active manner, shares or parts of capital of a commercial company, without any limitation, with the exception of the case when the company exercises activity in a sphere that is the same as or overlaps with the sphere of jurisdiction of the official and his competency to act, with acts issued by him or when the official has a fundamental and definitive role in the issuance of these acts, which create juridical consequences, benefits or costs to these companies or other companies that cooperate or compete with the company in question, in which case the official may own shares or parts of capital only in conformity with the conditions defined in letter “c” of article 27 of this law.
Restrictions for an Official of a Tax or Customs Organ
In addition to the restrictions defined in article 31 of this law, the following restrictions are also applicable to an official of the customs and tax administration who deals with the collection of customs or tax revenues:
a) an official of the customs organ may not own, in an active manner, any share or part of capital in commercial companies that perform import-export activities;
b) an official of the tax organ may not own, in any active manner, any share or part of capital in commercial companies that pay tax obligations or exercise activity in the field or territory of jurisdiction of the branch of taxes-fees where this official exercises his functions. For officials of the central management organ, territory of jurisdiction is considered the entire territory of the Republic of Albania.
c) The categories of taxes and customs administration officials subject to the restrictions foreseen in this article are determined by order of the Inspector General.
Restrictions for Certain Other Officials in High State Functions
The President of the Republic, a judge of the Constitutional Court, a judge of the Supreme Court, the Chairman of High State Control, the General Prosecutor, the Ombudsman, a member of the Central Election Commission, a member of the High Council of Justice and the Inspector General of the High Inspectorate of the Declaration and Audit of Assets and Conflict of Interests may not own shares in an active manner or parts of capital in a commercial company of any form.
Assessment of the Dominant Market Position of a Company
1. For the needs of implementation of this law, the Competition Authority assesses, in conformity with law nr. 9121 dated 28 July 2003 “On the protection of competition,” with or without a request, whether a company has a dominant position in a market.
2. When a company has been preliminarily characterized by this authority as a company with a dominant position in the market, every official, superior, public institution and superior institution take this fact as given.
3. If a company in which an official owns shares or parts of capital has not been characterized in advance by this authority as a company with a dominant position in the market, and when the superior, or superior institution, on the basis of official data, deems that there is the case for an assessment of the position in the market of this company, officially requests to the Competition Authority for an assessment about the position of this company. The request should also be accompanied by full and credible data in order to facilitate the assessment process of the Competition Authority. When the official to whom the question is related is interested, he makes a request to the Competition Authority, through the public institution where he exercises functions or through the superior institution.
4. For the needs of implementation of this law, the Competition Authority is obligated to respond officially on the basis of its best knowledge with an assessment that affirms or denies [the dominant position], whenever this is requested by a public institution, as quickly as possible but no later than one month from the date when the request is received. The Competition Authority, for justified reasons, may extend the time limit and determine a possible time limit for giving a response, by notifying the applicant for this.
5. Until the receiving of a final answer from the Competition Authority, the official continues to enjoy his rights as if this dominant position did not exist, but this should not hinder the official, his superior or superior institution from taking all appropriate alternative preventative measures, according to the definitions of article 37 of this law, with the purpose of anticipating the possibility of an assessment as a company with a dominant position in the market.
Presence of Interests in Persons Related to the Official
1. A related person in terms of Articles 27 to 33 of this Law, with regards to restrictions of private interests of the officials, set out in other Articles of this Section, shall be the spouse, cohabitant, adult children, parents of the official and those of the spouse and cohabitant.
2. If shares or parts of capital are registered in the name of a related person, they are considered the same as if they were registered in the name of the official himself and the property rights of the related person in them are restricted to the same extent and manner as in the case of the official himself. These restrictions are not applicable to persons related to persons related to an official.
3. The restrictions of point 2 of this article are applicable alike, and respect the same limits, for the following cases:
a) the entirety of shares or parts of capital of the official and persons related to him;
b) the entirety of shares or parts of capital of persons related to the official.
4. A person related to an official may not exercise activity as a natural commercial person or partnership of natural commercial persons of any form, if the activity is the same as or overlaps with the sphere of jurisdiction of the official and his competency to act, with individual or normative acts issued by him, or when the official has a fundamental and definitive role in the issuance of these acts, which create legal consequences, benefits or costs to this natural person or commercial company or other natural persons who cooperate or compete with the related person. This point is not applicable when at least one of the following conditions is met:
a) the only means with which the official may create the above effects is a law or a decision of the council of a municipality, commune or region or a judicial decision;
b) the activity and/or several commercial activities of a related person taken together create a total annual gross revenues that do not exceed a limit of 10 million ALL.
Connections between the Interests and Conflicts of Sections 1 and 2
1. Even when an official possesses private interests within the limits permitted in section 2 of this chapter, or brings them within the limits permitted according to the definitions of point 3 of article 38 of this law, he is not released from the other obligations, restrictions or prohibitions of this chapter, nor is he released a priori from the danger of falling into a case by case or continuing conflict of interests.
2. The passive ownership of shares or parts of capital may constitute a reason for falling into a case by case conflict of interests. The official and the trusted person are jointly responsible for taking all necessary measures to prevent the official from falling into such a conflict and for communicating between them to the extent necessary for this purpose. The burden of proof as to the inability to communicate within the appropriate time in relation to the participation of the official in the decision-making falls on the official and the trusted person.
WAYS OF TREATING AND RESOLVING CONFLICTS OF INTEREST
The Basic Means of Treating and Resolving Conflict of Interests
For the earliest possible and most effective prevention of every conflict of interests of any kind whatsoever:
1. The official, in the exercise of his functions, ahead of time, according to the circumstance, the need, in a graduated manner or in proportion to the importance of the situation, avoids and resolves himself every situation of conflict of interests of any form whatsoever, using, as the case may be and as appropriate, one or more of the following ways:
a) transferring or alienating private interests;
b) excluding himself ahead of time from the concrete process of decision-making, with the exception of cases when the delegation of the competencies of an official to another official is impossible because of the law or because of the situation or in the case of a collegial organ, by not participating in the discussion and voting in the issue in conflict ;
c) resigning from the private engagements, duties or functions that are in conflict with his public function;
ç) resigning from the public function, especially in the conditions of the emergence of continuing conflicts of interest.
2. The official notifies his superior or superior institution, as the case may be, of the resolution suggested or taken by him and gives evidence of and documents the resolution.
3. Notwithstanding the application of points 1 and 2 of this article, the official is not released from the responsibility for falling into a conflict of interest when the measures taken by him do not turn out to be effective in preventing and avoiding the conflict of interest.
4. The superior of the official or superior institution, starting from the closest one, ahead of time, according to the circumstance, the need, in a graduated way or in proportion to the importance of the situation, avoid and resolve every situation of a conflict of interest of a subordinate official of every kind whatsoever, using, according to the case and the appropriateness, one or more of the following ways:
a) restricting the official from specified information related to the exercise of his function;
b) not assigning duties to the official that might lead to the appearance of a conflict of interests;
c) not permitting the official to take part in the process of decision-making;
ç) reviewing or changing the duties and competencies of the official;
d) transferring the official to another duty that avoids the conflict of interests;
dh) taking measures necessary to avoid the appointment or selection of an official to functions in which conflicts of interest might arise or exist;
e) in the case of an act taken in the presence of an actual conflict of interests, however this is observed, if he has this competency, annulling or revoking as soon as possible the acts taken by the official, and if possible before they have brought consequences;
ë) the act may also be annulled or revoked when it is judged that the act was taken under the conditions of an apparent conflict of interests that might appear case by case or in a continuing manner;
f) the act is not annulled or revoked by the superior when he judges that the consequences that might come from the annulment or revocation obviously exceed the benefits from this annulment or revocation.
5. In special cases, when:
a) the conflict of interests is related to the highest manager of a public institution, the treating and resolution are done by the superior institution, if there is one and if this does not infringe on the principle of the independence of the institutions;
b) the conflict is related to an official who is equivalent to or is a member of a constitutional organ, the treatment and resolution is done by the competent organs defined by the Constitution.
6. An official is permitted to exercise his function and perform his duty on condition that the only unavoidable conflict of interest is an apparent one, when the following conditions are met:
a) when he:
i) either cannot be replaced in the exercise of his functions;
ii) or his self-exclusion is impossible according to letter “b” of point 1 of this article;
iii) or none of the resolutions of point 4 of this article is possible;
b) and when:
i) his decisions, according to the regulations by the law, are not subject to the approval, revocation or repeal by a superior institution;
ii) the alienation of the private interest according to letter “a” of point 1 of this article is not possible because of its nature (such as family or community ties, etc.);
iii) there is no sense in his obligatorily resigning from the function for such a case of conflict.
In such a case, the decisions of this official are subject to a special control and assessment by the institutions charged by law with controlling these decisions. The decision and the results of the control are always made public.
7. The superior notifies the official in a conflict of interest of the resolution given, as well as his own superior or superior institution, in writing and in a reasoned manner.
8. Notwithstanding the implementation of points 1 and 2 of this article by the official himself and/or of points 4, 5 and 6 of this article by the superior or superior institution, the officials responsible for the prevention and avoidance of a concrete conflict of interests are not released from the responsibility when the measures taken do not turn out to be effective in preventing and avoiding it.
9. The ways of treating and resolving conflicts of interest according to this article should be based on good understanding and cooperation between the official and his superior or superior institution, aiming mutually to use the best way to prevent and resolve the situation that has a conflict of interest. The official, the superior or superior institution shall, in every case, notify the High Inspectorate for the measures taken for regulating and resolving the cases of the conflict of interest.
Resolution of Particular Cases of Continuing Conflict of Interests
1. For the categories of officials defined in chapter III section 2 of this law, when the treatment and resolution of a continuing conflict of interests cannot be achieved through the means provided for in article 37 of this law, in order for the official to continue to stay in the same function, he must:
a) resign from the management functions or membership in the management organs, in every case when this is prohibited according to chapter III section 2 of this law, as quickly as possible but no later than 15 days from the moment this obligation arises, and make this fact known and documented it immediately and no later than 10 days from its performance;
b) interrupt the exercise of the activities prohibited according to chapter III section 2 of this law within 30 days, and within this time period, but as soon as possible, ask the competent organs to deregister these activities according to the law. The official notifies and documents the fulfillment of these obligations immediately but no later than 10 days from the above time limit, as well as notifies and documents the deregistration performed by the competent organs at any time and immediately after they are performed;
c) transfer the rights of active ownership of the shares or parts of capital that he owns to another person, according to the definitions of point 6 of article 3 of this law, but [provided] that:
i) the trusted person may not be his/her spouse and parents, adult children and their spouses, parents of the official, his brothers and sisters and their spouses, persons with a known friendship with this official, an official or other person with ties of dependency, even indirect ones, because of the public function, with the official in question;
ii)the trusted person may not be a natural commercial person, whether or not one of the persons mentioned above, a company in which the official owns directly or indirectly within the meaning of article 25 of this law shares or parts of capital, [or] a not-for-profit organization in which the official has had or has interest relationships of any kind.
2. If the official resigns from all the rights of ownership over the shares or parts of capital and alienates them to another person, the latter may not be any of the subjects mentioned in letter “c” of point 1 of this article for the trusted person. The official should make this action known and document it immediately but no later than 15 days from its performance.
3. A transfer according to letter “c” of point 1 of this article or alienation according to point 2 of this article is done as soon as possible, but no later than two months from the moment the obligation arises. The official makes known and documents the fulfillment of this obligation immediately, but not later than 15 days from the performance of this action.
The trusted person of an official defined in article 30 of this law alienates, as quickly as possible, but no later than six months, shares or parts of capital owned in a passive way by this official, with the purpose of respecting the restrictions of the interests of this official according to article 30 of this law. The trusted person makes the fulfillment of this obligation known the same as in the case of the official.
4. The time periods defined in the above points of this article may be extended by the superior or superior institution when the official presents reasonable cause for lateness. In every case, the reasons for extension and the new time periods are recorded and documented, but these time periods may never be more than twice the time periods defined above, with the exception of cases when the extension is dictated by the obligatory procedural time periods specified by the Constitution, by procedural laws, commercial legislation and/or the rules of public institutions for the issuance of official documents and/or the performance of juridical actions, or when the time period is extended because of the need of the Competition Authority, in order to assess the dominant position of a company in the market.
5. With the disappearance of the causes that dictate the restrictions defined in chapter III section 2 of this law, the official may again enjoy these rights.
6. This article is also applicable, to the extent it pertains to him, to a person related to the official according to the definitions of article 35 of this law.
7. If the official or related person is not willing to implement the requirements of the points of this article, then the official is obligated to resign from the function within the time periods defined in this article.
8. If the resignation is not given within the time periods defined in this article, the superior or closest superior institution, in order, applies one or more of the ways defined in letters “ç” and/or “d” of point 4 of article 37 of this law, which enables the most effective resolution, no later than 10 days from the final time limit, with the exception of cases when this action is not possible or this time period cannot be respected, because of other procedural time limits according to the definitions of article 39 of this law.
Procedures for the Treating and Resolution of Conflicts of Interest
1. The competencies of superiors or superior institutions for the treatment and resolution of conflicts of interest, including the prohibitions or restrictions according to chapter III of this law, the resolution of which is done according to the ways given in articles 37 and 38 of this law and the procedures for the exercise of these competencies, are defined by:
a) the Code of Civil Procedure and the Code of Criminal Procedural, for judicial processes and criminal proceedings;
b) the Code of Administrative Procedures, for all public institutions subject to this Code;
c) separate laws that regulate the activity of public institutions or the rights and obligations of various categories of officials;
ç) the Constitution, when the conflict is related to an official who is equivalent to or is a member of a constitutional organ.
2. The procedures and competencies according to point 1 of this article, as the case may be, also define the way the official himself or a related person against whom the measures for the treatment and resolution of a conflict of interests have been applied, may appeal when he judges that these measures were taken in excess of the definitions of this law.
INVALIDITY OF ACTS TAKEN UNDER CONDITIONS OF A CONFLICT OF INTERESTSAND THE CONSEQUENCES
Invalidity of Acts and the Consequences
1. Administrative contracts and acts of every public institution, and appealing against them, issued under the conditions of an actual or apparent conflict of interests are invalid according to the meaning of this term and the principles and procedures defined in the Code of Administrative Procedures.
2. Every civil contract concluded in violation of points 1, 2, 3 and 6 of article 21 and point 3 of article 24 of this law, or in any other case when it was entered into in the presence of an actual or apparent conflict of interest does not create any legal consequence.
3. The acts defined in letter “a”, “ii” of point 1 of article 4 of this law, issued in the presence of an actual or apparent conflict of interest are reviewed and reversed for this reason by the respective organ, in conformity with its competencies to decide in connection with this question, according to the definitions and, as the case may be, in the Code of Civil Procedure or in the Code of Criminal Procedure or in other laws that regulate the regime of these acts.
4. The acts defined in letter “a” “iii” of point 1 of article 4 of this law, issued in the presence of an actual conflict of interest are relatively invalid according to the same meaning used for administrative acts in the Code of Administrative Procedures.
5. An apparent conflict of interest does not constitute a cause for invalidity according to points 1 and 3 of this article only it appears under the conditions defined in point 6 of article 37 of this law.
Regulating the legal consequences of acts issued under the circumstances of conflict of interests
1. The High Inspectorate takes the initiative to lodge a complaint with the respective administrative authority with regard to the invalidity of the administrative acts and contracts and/or their revocation/repeal by the competent authorities, any case, when based on the administrative verification and investigation, it ascertains a conflict of interest under this law.
2. Where an act of a public institution becomes invalid in accordance with the provisions of points 1, 2, 3 and 4 of Article 40 of this law:
a) the public institution shall, upon deeming that the official has acted in bad faith, within 30 days from the notification:
i) initiate the proceedings for the disciplinary measures against the official causing the invalidity of the act;
ii) use of all the legal means for shifting the burden of compensation to this official ;
iii) ask the respective court to impose damages to the benefit of the institution for the caused moral harm;
iv) file criminal charges against the official, if the infringement committed by him is considered to constitute a criminal offence;
b) the provisions of letter “a” of this point may be applied even to any other responsible official, where, upon his acts or omissions, he has not prevented the conflict of interest, causing the invalidity of the act, or failure to perform the obligations according to letter “a” of this point;
c) the provisions of letter “a” of his point shall be applied to the official in conflict of interest, causing the invalidity of the act, according to the cases as follows:
i) in the case of an MP, regarding the vote cast as MP, only the sub-point “i” of letter “a” shall be applied;
ii) in the case of a judge, with regard to the judicial decisions made by him or his vote in a judicial decision shall not be applied the sub-points “ii” and “iii” of letter “a”;
iii) in the case of a prosecutor, shall not be applied the sub-points “ii” and “iii” of letter “a”
ç) with regard to other officials exercising audit or investigative functions, the
provisions of sub-points “ii” and “iii” of letter “a” shall not be mandatory, nevertheless their assessment remains to the superior and, in his absence or omission, the superior institution;
d) the actions provided in point 1 of this Article shall be carried out by the public institution, as appropriate, even against the related person, trusted person or any other co-responsible person.
3. In case the public institution itself does not take the initiative under letter “a”, point 2, the superior institution shall, in a hierarchical way based on their legal power, perform the obligations set out herein. In case of their omission, the actions provided in letter “a”, point 2, shall be performed by the High Inspectorate, which shall, as appropriate, cooperate with the State Advocacy.
4. A complain may be filed against the decisions of the High Inspectorate establishing the conflict of interest in the administrative acts and contracts with the competent court within 45 days from the notification of the decision.
INSTITUTIONS RESPONSIBLE FOR THE PREVENTION OF CONFLICTS OF INTEREST
Authorities Responsible for the Prevention, Audit and Resolution of the Situations of Conflict of Interest
1. The central authority responsible for the implementation of this law is the High Inspectorate for the Declaration and Audit of Assets and Conflict of Interests, which is mentioned in this law with the abbreviation “High Inspectorate.” The High Inspectorate shall act upon the request of the public institutions, interested parties and ex officio.
2. The authority or structure responsible for the implementation of this law in the public institutions is:
a) the superiors of the officials, according to the hierarchy, within a public institution;
b) the directorates, units of human resources or units especially charged, according to the need and the possibilities of every public institution;
c) the superior institutions.
Competencies of the High Inspectorate for the Declaration and Audit of Assets and Conflict of Interests
1. The High Inspectorate, in the capacity of the central authority responsible for the implementation of this law, performs the following duties and has the following responsibilities:
a) the management and improvement of the polices and mechanisms of preventing and avoiding conflict of interests;
b) the offering of technical assistance for advising and supporting legal and sub-statutory initiatives undertaken by the public institutions for the prevention of conflict of interests;
c) the offering of recommendations for the Assembly of the Republic of Albania for the assessment of draft laws relating to the question of conflict of interests, when requested by that institution;
ç) the strengthening of the capacities for the administration of conflict of interests in the public institutions;
d) the monitoring, audit and assessment of the compatibility with the principles and obligations of this law, of the sub-statutory acts and internal rules approved by the public institutions for conflict of interests;
dh) the monitoring, audit and assessment of the implementation of this law, entirely, for the prevention of conflict of interests in public institutions, as well as the respecting of this law in particular cases of conflict of interests;
e) the periodic registration of the private interests of officials according to chapter II section 2 of this law;
ë) Setting out the model for the declaration of private interest and the authorization for continued and case by case declaration of interests, as well as the registration of the data related to such a conflict;
f) advising particular officials, superiors, and superior institutions, at their request, about specific cases of the appearance of a conflict of interests and questions of ethics related to them, as well as on the period registration of interests;
g) the verification and administrative investigation of the periodic declarations of interests;
gj) the verification and administrative investigation of case by case conflict of interests, as well as the prohibitions and the restrictions of interests defined in chapter III of this law, at the request of the public institution or superior or when it considers it necessary, also on its own initiative;
h) the setting of punitive administrative measures in its competency, according to the definitions in this law;
h/1) initiating legal actions with the competent public institutions, upon the request of interested parties or ex officio, to the effect of declaring the invalidity and regulating the consequences deriving from the administrative acts and contracts issued under the circumstances of conflict of interests.
i) every other competency, given in this law.
1/1. The High Inspectorate, with regard to the administrative verification and investigation of the case by case or continued conflict of the interests, is empowered to use all the necessary data from all state and public structures and from the public and private legal entities, who are obliged to make available the data required by the Inspector General not later than 15 days.
2. The High Inspectorate, for the implementation of its competencies and responsibilities, issues sub-statutory acts in the form of orders and instructions in conformity with the Code of Administrative Procedures.
3. The authorities set out in letter “b”, point 2 of Article 41, of this law, collect and submit to the High Inspectorate the filled in declarations of private interests before beginning of duty, after leaving office within 15 days from the termination of the legal terms for the submission of these declarations by the respective subject.
The annual periodic declarations are sent to the High Inspectorate within April 15 of every year. The responsible bodies inform the High Inspectorate about the cases of failures to make the declarations.
These bodies provide support and perform the tasks entrusted by the Inspector General for the fruitful facilitation and development of the periodical process of declaration of interests, as well as the cases of the conflict of interests. They shall, annually for the previous year, not later than January 31, submit to the High Inspectorate a report on the activity carried out under this law, including the cases of the conflict of interests, ways followed for preventing or processing them, attained outcome, as well as issues related to the period of declarations.
The Inspector General, based on the annual report, prepares evaluations and recommendations relating to the implementation of this law by the respective authorities and public institutions.
In the job description for the position of the responsible authority criteria regarding the knowledge on laws regulating the declaration of assets and prevention of conflict of interests, shall be included.
The Inspector General shall be notified in advance regarding the appointment, transfer or discharge from the office of the responsible bodies.
4. The low inspectorates, in conformity with law no. 9049, dated 10 April 2003 “On the declaration and audit of assets, financial obligations of elected persons and certain public officials”, are abolished upon the entry into force of this law.
The treatment and resolution of conflict of interests according to the articles of chapter IV of this law are not considered as sanctions according to this chapter.
The declarations on the conflict of interests and all accompanying documents are official documents. Outlining false data therein shall constitute a criminal offence and it shall be sentenced in accordance with the legislation in force.
1. An infringement of obligations set out in this law, as long as it does not constitute a criminal offence, shall be an administrative infraction and it shall be sentenced with a penalty, within the range set out as follows:
a) in the event of failure to self-declare or failure to declare upon request, in compliance with points 1 and 2 of Article 7 of this law, the official shall be fined from 30 000 (thirty thousand) ALL up to 50 000 (fifty thousand) ALL;
b) in the event of failure to issue the authorization, under point 2 of Article 10 of this law, the official shall be fined from 30 000 (thirty thousand) ALL up to 50 000 (fifty thousand) ALL;
c) with regard to the violations of Articles 21, points 1, 2, 3 and 6, 22, 23, point 1, and 24, point 3 of this law, the official or the person related with him, the trusted person or the head of the company shall be fined from 100 000 (one hundred thousand) ALL up to 200 000 (two hundred thousand) ALL;
ç) with regard to violations of points 1 and 4, letters “a”, “c” and “e” of Article 37 and points 1, 2, 3, 5 and8 of Article 38 of this Law, the official or the person related with him shall be fined from 100 000 (one hundred thousand) ALL up to 300 000 (three hundred thousand) ALL);
d) wherever the situation set out in letters “a” and “b” of point 2 of Article 40/1, the official shall be fined from 300 000 (three hundred thousand) ALL up to 500 000 (five hundred thousand) ALL;
dh) where the data required by the High Inspectorate under point 1/1 of Article 42 of this law are not made available, the responsible persons of the public and private institutions shall be fined from 50 000 (fifty thousand) ALL up to 100 000 (one hundred thousand) ALL;
e) in the event of violations referred to above, the fine shall be imposed by the Inspector General, upon the proposal of the superior or superior institution or, where the violation is verified directly, by the High Inspectorate;
ë) with regard to other violations of this law, set out upon the order of the Inspector General and upon the proposal of the superior of the structure of the institution under letter “b” of point 2, Article 41, of this law, of the superior institution, or where the violation is verified directly by the High Inspectorate, the persons responsible shall be fined from 50 000 (fifty thousand) ALL up to 100 000 (one hundred thousand) ALL;
f) The Inspector General notifies the superior or the superior institution for any administrative measure taken against the respective official.
2. The amount of the penalty is higher based on the extent of the violation and in the increasing level of the position hold by the official.
3. The procedures for application of the administrative measures and an appeal against them are regulated according to the Code of Administrative Procedures.
4. The fines are paid by the infringer and are assigned to the budget of the High Inspectorate no later than 30 days from the notification of the fine. When this deadline expires, the imposed decision becomes an executive title and is executed in an obligatory way by the employer where the offender is employed, or by the bailiff office, upon the request of the Inspector General.
5. The examination of administrative contraventions, found out in the course of conducting the inspections of the High Inspectorate, shall occur within 6 months since the finding of the violation.
Execution of penalties
All revenues from fines and other revenues collected pursuant to the provisions of this Law shall be assigned to the State Budget, not later than 30 (thirty) days from the date of notification of the fine.
When this deadline expires, the imposed decision becomes an executive title and is executed in an obligatory way by the employer where the offender is employed, or by the bailiff office, upon the request of the Inspector General.
1. Every violation of the obligations defined in this law by the officials constitutes a disciplinary violation, regardless of criminal or administrative responsibility. The disciplinary measures are applied in conformity with the laws that regulate labor relations and/or the status of the officials. The High Inspectorate is informed, case by case, on the disciplinary measures taken by the respective institutions.
2. For officials who are equivalent to or are members of constitutional organs, the disciplinary measures and procedures defined by the Constitution and the respective legal provisions are applicable.
3. For a violation committed by the members of the responsible structure of the institution, within the meaning of letter “b” of point 2 of article 41 of this law, the Inspector General proposes to the head of the institution the removal of that member from the function.
4. Failure to give authorization according to point 2 of article 10 and point 5 of article 14 of this law brings the interruption of work relations according to the procedures defined in the legislation that regulars work relations.
PROVISIONS FOR THE TIME PERIODS OF IMPLEMENTATION OF PARTICULAR OBLIGATIONS IN THIS LAW
Issuance of Sub-statutory Acts
1. For the implementation of this law, every public institution, based on the principle of proportionality and the specific nature of its functions and/or each of its officials, issues internal rules, in connection with:
a) the meaning of decision-making for an act and of fundamental and definitive competency of an official, according to the principles defined in point 2 of article 4 of this law;
b) the subcategories of interests or the concrete interests that might become the reason for the emergence of a conflict of interests;
c) the criteria and indicators to enable a measurement and assessment that is as clear and objective as possible of the performance, in a correct manner and/or an incorrect manner, of the duties and responsibilities of an official, for the prevention of conflicts of interests;
ç) the process of identification, registration and administrative control and review of the private interests of the officials, related to case by case conflict of interest, in accordance with Chapter II, section 1, of this law;
d) the implementation of article 20 for data protection;
dh) the ways to treat and resolve a conflict of interests defined in chapter IV of this law;
e) specific duties, the way of performing them and the organizational form of the authority and structure responsible for the implementation of this law, according to article 41;
ë) the assessment of disciplinary violations and the taking of punitive measures, according to article 45 of this law.
2. The absence of above mentioned acts is not a justification for the failure to implement this law. In their absence, this law is directly applicable. An exception is made only for the periodic declaration of interests, which is made only on the basis of orders and explanatory acts issued by the Inspector General.
BEGINNING OF THE TIME PERIODS OF APPLICATION OF THE PARTICULAROBLIGATIONS OF THIS LAW
Beginning of the Time Periods of Application of the Particular Obligations of this Law
The effects of this law begin immediately after its entry into force, with the following exceptions:
a) the obligations defined in chapter III section 2 of this law, with the exception of the obligations that are in force because of definitions in other separate laws for the same purpose, begin to be applied on October 1st , 2005;
b) the periodic declaration of interests according to this law begins to be made for the first time in 2006 for the year 2005;
c) no later than six months from the entry into force of this law, but no later than October 1st, 2005, the public institutions and the High Inspectorate issue all the sub-statutory acts and/or internal rules defined by this law.
PASSAGE FROM THE DECLARATION OF ASSETS TO THE DECLARATION OF INTERESTS
Passage from the Declaration of Assets to the Declaration of Interests
The periodic declaration of assets and financial obligations is dissolved and is conducted, after the entry into force of this law, as a periodic declaration of interests, based on the definitions of chapters II section 2, VI and VII of this law, as well as the principles, procedures, time periods, competencies and other punishments defined in the Law no. 9049, dated 10 April 2003 “On the declaration and audit of assets, financial obligations of elected officials and certain public employees” that have not been expressly amended in this law on the prevention of conflict of interests and do not conflict with it.
Periodic Declaration in the Declaration Period of the Years 2004 and 2005
1. The declaration of assets and financial obligations made in 2005 for the period of the declaration from January 1st, 2004 to December 31, 2004, and for declarations before the beginning of work, in every case when such a declaration will be made during 2005, as well as the process of full audit and administrative investigation of these declarations, will be performed according to the law no. 9049 dated 10 April 2003 “On the declaration and audit of assets, financial obligations of elected officials and certain public employees,” but being amended and adapted, to the extent possible, with the definitions of this law for those questions. On the entry into force of this law, the Inspector General takes all measures necessary for the implementation of this point.
2. The officials who have declared at least once according to law no. 9049 dated 10 April 2003 “On the declaration and audit of assets, financial obligations of elected officials and certain public employees,” or according to point 1 of this article, should make a periodic declaration on an on-going basis also for the first declaration that will be made in 2006 according to this law, for the interests defined in letters “a” and “b” of point 1 of article 15 of this law, and it is considered that they make a declaration before beginning work only for the interests defined in letter “b”, “c” of point 5 of article 15 of this law.
Article 2 point 4, article 3 second and third paragraph (together with letters “a”, “b” and “c”), articles 8,10, 18, 19, 20, 23, 25 point 1 third, fourth and fifth paragraph, and point 2, as well as articles 35, 36, 37,40 and 41 of the law no. 9049 dated 10 April 2003 “On the declaration and audit of assets, financial obligations of elected officials and certain public employees,” are repealed.
Article 3 point 1, letter “ë”, article 4 the words “the low inspectorates”, article 6, article 9, article 17 letters “c” and “d”, articles 24, 26 and 27 the words “and the low inspectorates”, article 28, in the articles 29, 30, 32 and 39 point 2 the words “the chairman of the low inspectorate”, “or of the low inspectorates” “or low inspectorate” of law no. 9049, dated 10 April 2003, are repealed.
FINAL PROVISIONS AND EFFECTIVE DATE
Indexation of Monetary Limits
1. The limits expressed in money in this law rise automatically every three years, with the same co-efficient of growth equal to the norm of the increase of the average pay in the public administration. The average pay is calculated as the ratio of the wage fund, including social and health insurance, divided by the total number of employees of all budgetary institutions for the same three year period.
2. The beginning of the time period of the calculation is the date January 1st, 2006. The Council of Ministers approves the average norm of the increase of pay in the public sector within the month of July of 2009. On January 1st, 2010, the monetary limits rise automatically according to this norm.
The public officials that have begun work for the first time in any function and as a result have the obligation to make a declaration and have made it before beginning work, in conformity with article 15 of the law, they meet the condition of justifying the created sources of their private interests, declared within two months from the entry into force of this law. This obligation is not applicable for those officials that have justified the sources themselves.
Entry into Force
This law enters into force 15 days after its publication in the Official Journal
Approved by Decree no.8565, dated 16.05.2014 of the President of the Republic of Albania, Bujar Nishani
Published in the Official Gazette no.70, dated 20.05.2014.