Albania
I. Introduction/Recent Political Context
After a serious breakdown in society resulting from the turmoil after the collapse of the totalitarian communist regime, in which crime and unemployment soared and the provision of basic services collapsed, Albania is showing signs of having turned a corner. Control over the streets has been restored, some investment has started, and Albanians seem eager to get back to work. Environmental protection is relatively low on the average citizen's list of priorities, however, and notions of civil service and public participation are basic at best. It should be noted that, with most factories shut down and a state of development that is the lowest in Europe, Albania does not share many of the environmental problems of its neighbors. Yet, since development is inevitable, the next few years will be a critical time for environmental protection in Albania.
In 1993 Albania adopted a Law on Environmental Protection, intended to be a framework law to be followed by specific laws on air, water, waste, etc. The first of these, the Waste Law, is in the latter stages of drafting as of the end of 1993.
II. Legal Structure and Legislative Process
A. Constitution
There is no single document serving the purpose of a constitution in Albania. Albania is continuing to work on drafting a new constitution, but in the meantime has adopted various laws intended to fill the role of a constitution on a temporary basis. One such law is the law (No. 7491, August 1991) "On the main constitutional dispositions," which resulted in the adoption of the Law on Environmental Protection in 1993.
1) Basic Rights and Obligations
a. Right to Healthy Environment
Article 16 of the August 1991 law "On the Main Constitutional Dispositions" (called for simplicity the Constitution) states the national policy that environmental protection constitutes a prerequisite for sustainable development of society and shall be a priority of national interest. Pursuant to this statement, the People's Assembly is charged with drafting an environmental protection law.
b. Right of Expression
Article 2 of the Constitution guarantees freedom of expression.
c. Right to Information
Article 2 further states that the right to information may not be denied to anyone.
d. Right of Free Assembly
This right is guaranteed by Article 21 of the Constitution.
e. Right of Association
The right of "collective organization" is guaranteed by Article 20 of the Constitution.
f. Right to Petition
The right to petition is guaranteed by Article 37, which states:
Everyone, alone or jointly with others, shall have the right to address requests, claims, or suggestions to competent governmental bodies.
g. Government's Relationship to the Citizens
In the April 29, 1993 amendments to the Constitution, a general reference was included that the people exercise their powers through elected representatives and directly.
2) Right to Petition Constitutional Court for Review
On April 29, 1993 a new chapter was added to the law on the Main Constitutional Dispositions, entitled "The Organization of Justice and Constitutional Court." This new chapter establishes the Constitutional Court, which is empowered to consider the constitutionality of laws and governmental actions at the request of various representatives of the branches of government. Ordinary citizens also have the right to initiate a proceeding before the Constitutional Court if the citizen claims a violation of his rights as defined in the Constitution.
B. Legislation and Rule-Making
1) Constitutional Provisions
As mentioned above, Albania continues to work on drafting a new constitution. In the meantime, interim constitutional laws are operating.
2) Right of Initiative
The 1993 amendment to the Constitutional law added a provision defining the powers of legislative initiative. In addition to the President, Council of Ministers and Members of Parliament, any group of voters numbering at least 20,000 may initiate legislation.
3) Right of Referendum
The Constitution (also deriving from the 1993 amendments) allows for referenda to be held upon the motion of the People's Assembly. Up to the end of 1993 no law defining the procedures for referenda had been adopted. The Constitution does not specifically give the right to call for a referendum to the people.
4) PP Provisions in Laws
There are no laws concerning Parliamentary or Governmental legislative procedure that require public participation in the deliberations of either body.
5) PP in Parliamentary Practice
In general, draft laws are submitted to the relevant Parliamentary commission by the government. The Parliamentary commission then generally invites comment from governmental or independent institutions or individual experts. The Parliamentary Commission on the Environment generally invites expert and NGO assistance in its deliberations, although there is no formalized procedure.
6) PP in Governmental Practice
In practice, described by Albanian legal experts as the "official" procedure, although not specified in any law, the agency of government charged with drafting a law distributes the draft to expert institutions or organizations connected to the government. After this process the draft is sent for comments to independent specialists and experts. At this independent expert stage, reasons must be given for not taking comments into account in the draft. A second round of comments may occur with debate between the government and independent experts.
The Committee of Environmental Protection and Preservation (CEPP), precursor to the Ministry of Health and Environment, used public comment in the drafting of environmental legislation. This comment came from the Association of the Preservation and Protection of Natural Environment (PPNEA).
It is the policy of the Ministry of Health and Environmental Protection to take public comments into account in the adoption of the National Environmental Action Plan and in the production of annual reports on the state of the environment.
7) PP on Local/ Regional Government Level
Although the public has opportunities to participate informally in local decision-making, formalized procedures are lacking at present.
C. Right-to-Know and Freedom of Information
1) Constitutional Provisions
Article 2 of the Constitution includes a general statement that the right to information may not be denied to anyone.
2) Laws
- Article 34 of the Law on Environmental Protection provides
- The authorities referred to ... shall publicize information which contains data on the change of environmental situation, by mass media or by any other means, in a form that is accessible to citizens.
- Trade secret protection is provided. The next article elaborates:
- Immediately after observing pollution and damage to the environment, the authorities ..., as well as the natural or legal persons, must inform the population about the occurred environmental adverse alteration, the measures taken to reduce or limit it, as well as the appropriate conduct of citizens concerning health protection and their security.
3) Procedures
No procedures have yet been established to implement the above requirements.
4) Reporting Requirements
The Law on Environmental Protection places responsibility for control of the "environmental situation" on the Minister of Health and Environmental Protection, who is obliged to gather information to form the basis for his decisions in fulfilment of his duties. Persons whose activities affect the environment are obliged to report environmental data to the Ministry of Health and Environment, its regional branches and other authoritative bodies, according to rules defined by the Minister. Art. 33. These rules have not yet been written.
- A general statement protecting the consumer is found at Article 36:
- Natural and legal persons shall inform their buyers or customers during the time of sale or performance of service, in writing or orally, about dangerous components of goods and services and about their possible adverse effects and impacts on environment and human health.
5) Remedies
Failure to report information about adverse effects on the environment caused by a person's activities, failure to advise the public about actions to be taken by citizens to protect their health and safety, and failure to warn about the dangerousness of goods and services are violations punishable by administrative fines under Article 45, 5-7. Fines are set forth in Article 46 and remedies may include seizure of the means of environmental pollution or revocation of operating licenses [Note: this article refers to violations under Article 44, but appears to mean Article 45.].
III. Legal Process
A. Administrative Law and Procedure
Albania does not have a law on administrative procedure or an administrative law of universal application. Instead, each substantive law includes administrative and procedural provisions which apply to proceedings brought under that substantive law. These provisions are augmented by a general theoretical framework of administrative justice which appears not to be in written form.
The Law on Urbanistics, for example, includes, at Article 27, a statement that the decision of the relevant planning council with respect to the project application is final. No right of appeal, either administrative or judicial, is provided under the law.
The General Law on Administrative Contraventions (15 April 1993, Fletorja Zyrtare Nr. 5) provides for a right of appeal to a court of law against the imposition of administrative penalties only. This law does not cover rights of appeal or remedies against other final administrative decisions.
B. Public Participation in Environmental Protection Laws
- The recently adopted Environmental Protection Law (No. 7664, 21 January 1993) is the first in a series of new laws completely revising the environmental protection scheme in Albania. Under Article 29 of the law, control over the sources and causes of pollution shall be exercised by the Minister of Health and Environmental Protection
- [a]t the request of natural and legal persons and citizens that are affected or may be affected by environmental pollution and damage, as well as other organizations of an environmental character.
The Ministry has the duty to organize and support the spreading of education and participation of the population in environmental protection. Art. 40, dh.
1) Environmental Impact Assessment
Articles 7 through 16 of the Law on Environmental Protection concern EIA. The law contains the requirement that all activities of natural and legal persons in Albania shall be subject to EIA. The breadth of that statement is qualified in further provisions specifying which activities shall be subject to compulsory EIA. These provisions, found at Article 8, encompass both proposed projects with significant potential environmental impacts, and ongoing activities.
- With respect to public participation, Article 12 provides:
- Concerned natural and legal persons shall have the right to participate in the consideration of results and environmental impact assessments.
- They shall be informed by national or local mass media or other appropriate means about the procedures of the environmental impact assessment, not later than one month before the assessment begins.
Further the law places responsibility for informing the population about the local environmental situation and activities subject to EIA in the local authorities. Art. 42, 4.
The authority to order an EIA is granted to the CEPP (succeeded by the Ministry of Health and Environment), its regional agencies, or communes, municipalities or district councils, according to relevant territory. Art. 9. The Ministry is charged with developing rules and procedures for EIAs under Article 11. These rules are being drafted and are not expected before Spring of 1994.
2) Environmental Permitting
The requirement for licensing of economic and social activities that may have an impact on the environment is determined according to Articles 17 through 25 of the Law on Environmental Protection. As mentioned above, the EIA requirement may be applied to both proposed activities and ongoing activities. The Ministry currently interprets the law to require submission of an EIA during every environmental permitting proceeding. Thus, the public participation required by the EIA provisions will take place in every permit proceeding for which it is determined that the proposal includes significant potential environmental impacts. Although permits issued pursuant to Article 20 are valid "until the conditions, according to which the license is granted, change," Article 10 of the Law on Environmental Protection requires additional EIAs, for those projects and activities determined to require them, to be conducted periodically but not less than once in five years. Thus, a full public participation process must be conducted at least every five years for such facilities. Depending on the results of the EIA, it is conceivable that this process could trigger the expiration of the environmental permit, if it becomes apparent that the conditions under which the permit was granted have changed in the meantime.
Under decree no. 5105, all foreign investors must obtain a permit for environmental resource use and for pollution from the Ministry of Health and Environment, but the public does not formally participate in the permit process.
Local governments have virtually no power over permitting. The Executive Committee of a district may be consulted, however. On the other hand, the Ministry may order local authorities to conduct an EIA for projects and local activities, under Article 10 of the Law on Environmental Protection.
3) Citizen Enforcement, Monitoring and Inspection Rights
Citizens have no extraordinary enforcement powers. They may file complaints with the competent enforcement authority. Enforcement authorities which detect violations are obliged to notify the public about the violation, the relevant environmental conditions, and measures taken by the authorities. They must also give directions to the public for protection of health and safety, if necessary.
4) Remedies
Information about remedies is lacking at present. See discussion above under "Administrative Law and Procedure."
5) Liability
A private cause of action for damages due to environmental pollution is established under Article 43 of the Law on Environmental Protection. Complaints are to be filed with the civil courts.
C. Public Participation Through Other Laws
1) Land Use Laws
A new law on Urbanistics was passed (No. 7693) on 6 April 1993. This law establishes a National Council for Territory Planning and up to forty District Councils. The National Council is to be formed by the Council of Ministers. Both the National Council and the District Councils are charged under the law with developing plans for "reconstruction" of the territory. The district councils, for example, are to be composed of from 11 to 21 members, led by the chiefs of the respective District governmental units. The majority of each council must be architects, engineers and other land use professionals. The remainder must come from related fields, such as specialists for environmental protection and agriculture. All of the voting members of the councils are therefore experts; none are representatives of the general public. Also allowed to take part in the deliberations, but without vote, are representatives of the local governments (villages, communes and municipalities) and other "study-writers" -- again, not members of the public at large.
- The process of public participation in the development of land use plans has been fundamentally changed by the new Law on Environmental Protection. Under Article 8, paragraph 1 of that Act:
- national and local programs and territory structuring and urban development plans as well as their amendments...
- are subject to EIA. Those public participation provisions applicable to EIAs, set forth above, will apply to promulgation of such programs and plans.
2) Construction Permitting
Another of the functions of the local and national councils under the Law on Urbanistics is to approve projects for construction. There are at least two steps for approval -- site selection and construction permitting. District councils approve projects of less than one half hectare, and the National Council approves projects of one half hectare or larger. Article 31 of the law sets forth the documentation required to be submitted with the proposal application. That documentation includes an engineer's report, a technical report, and reports of local expert authorities, but does not include, as required by the laws of some other countries, a public comment procedure. More detailed rules implementing the law are required to be promulgated by the Council of Ministers under Article 4 of the law. According to reports from the government the Ministry of Construction had submitted the draft of the rules to the Council of Ministers in December 1993.
The presence on the councils of the specialists for environmental protection is important, because it links the land use planning and construction permitting processes with the Environmental Impact Assessment process required under the Law on Environmental Protection.
Construction permits are issued by central government agencies according to zoning master plans. These plans generally have not addressed environmental issues. Under the new EIA requirements of the Law on Environmental Protection, however, "territory structuring and urban development plans" will require environmental impact assessment. Thus, the public may take part in the overall zoning process. Permits for construction are generally granted when the proposed activity is consistent with the overall plan, and may require the approval of the Ministries of Construction, Economy or Agriculture, or other relevant authorities. Such permit-issuing proceedings do not require public participation, since the public participation that occurred during the promulgation of the master plan is considered sufficient. The public has no right to information concerning such permitting decisions, nor is there any right to challenge permits on environmental or other grounds.
Local governments have virtually no power over permitting. The Executive Committee of a district may be consulted, however.
3) Civil Code (Liability) and Civil Procedure
A private cause of action for damages due to environmental pollution is established under Article 43 of the Law on Environmental Protection. Complaints are to be filed with the civil courts. The Civil Code does not directly provide for any other civil causes of action based on environmental torts. General civil law provisions concerning compensation for harm can be applied to situations where the harm is due to environmental impacts.
4) Penal Code
- Article 235 of the Civic Code provides penalties for environmental pollution, and states as follows:
- The violation of the dispositions related to protection of soil, natural resources, water and air from demolition and pollution, in case of grave consequences is punished with: social reproaching or a fine up to 1000 leke [$10 US], reeducation through work or imprisonment up to two years.
IV. Anticipated Developments in the Law
The Parliament will consider a draft law on local governments, which promises to decentralize decision-making to some extent. Local governments currently have virtually no authority. The Ministry plans to draft various environmental laws including laws on forests, air, water, soil, nature protection and noise. These laws are not expected to contain public participation provisions.
V. Case Studies on Public Participation
(including Public Actions)
There are two major green factions, the Green Party (aligned with the ruling Democratic Party) and the Ecological Party (aligned with the Socialist Party). Individuals have given information to these parties about such issues as hunting licenses and activities of foreign oil companies, but it is not clear what steps these organizations are taking to influence the government. According to sources in government and within the emerging Green movement, there have been no significant public protests or actions, although public opinion is becoming increasingly sensitive to environmental issues. Another source, however, said that protests have taken the form of written submissions to government officials, on topics such as hunting by foreigners and irresponsible fishing practices. One protest concerned citizens cutting rare trees in the Botanical Garden for housing purposes. In Elbasan, a particularly polluted area, green organization is comparatively strong.
REC * PUBLICATIONS * MANUAL ON PUBLIC PARTICIPATION * COUNTRY REPORTS * ALBANIA
