Textes relatifs à l'institution
XVI. STATUTE
No.8454, dated 4.2.1999
LAW ON PEOPLE'S ADVOCATE
Pursuant to Articles 60 through 63, 81 and 83,
item 1 of the Constitution, upon the proposal of the Council of
Ministers,
THE ASSEMBLY OF THE REPUBLIC OF ALBANIA DECIDED:
CHAPTER I
GENERAL PROVISIONS
Article 1
Object
of the Statute
The object of this Statute is the adoption of the
rules for the organization and functioning of the People's
Advocate.
Article 2
Duties
of the People's Advocate
The People's Advocate shall safeguard
the rights, freedoms and lawful interests of individuals from
unlawful or improper actions or failures to act of the organs of
public administration or third parties acting on their behalf.
The People's Advocate, guided by the principles of
impartiality, confidentiality, professionalism and independence,
shall exercise his activity for the protection of human right and
freedoms as defined by the constitutional provisions and by the laws.
The provisions of this Statute shall also apply to protect the rights
of foreigners, whether they are residing lawfully, in Albania or not,
refugees, as well as stateless persons within the territory of the
Republic of Albania, pursuant to the terms set forth by law.
Article 3
Requirements
for Election of the People's Advocate
People's Advocate may be any person who meets the
following requirements:
is an Albanian citizen;
has outstanding knowledge of, and activities
in, the area of human rights, freedoms and law;
has distinguished professional skills and
moral-ethical qualities;
has never been convicted criminally;
Is not a member of the parliament that proposes
or elects him?
CHAPTER II
ELECTION, REMOVAL AND RIGHTS OF THE PEOPLE'S
ADVOCATE
Article 4
Election
of the People's Advocate
The People's Advocate shall be elected by
three-fifths of all the members of the Assembly.
Article 5
Term
in Office
The People's Advocate shall remain in office for a
5-year period, with the right of re-election.
Article 6
Immunities
and Salary
The People's Advocate shall present to the
Assembly an annual report. The People's Advocate shall report to
the Assembly whenever the latter so requests and may request the
Assembly to hear him on matters he determines important and shall
only be responsible to the Assembly. The People's Advocate shall
enjoy the immunity of a judge of the High Court. His salary shall be
equal to the salary of the President of the High Court.
Article 7
Termination
of Functions of the People's Advocate
The functions of the People's Advocate shall
terminate if:
he resigns;
his 5-year term in office elapses;
he dies;
He is removed [from office].
Article 8
Removal
from Office of the People's Advocate
The People's Advocate shall be removed from office
only in case he:
is convicted by means of a final court
decision;
becomes mentally or physically incapacitated to
perform his duties;
he conducts activities that violate the
provisions of Article 10 of this Statute;
Is absent from duty for more than three months.
The motion for the removal of the People's
Advocate shall be presented by at least one-third of the members of
the Assembly.
The decision of the removal from office of the
People's Advocate shall be taken with the votes of three-fifths of
the members of the Assembly.
Article 9
Election
of a New People's Advocate
The Assembly shall elect the People's Advocate
within one month from the termination or removal from office [of the
previous People's Advocate]. Until a new People's Advocate is
elected, as well as in case the People's Advocate in unable to
perform his duties, the duties of the People's Advocate shall be
carried out by the longest-serving commissioner.
Article 10
Incompatibilities
with the Duty of the People's Advocate
The People's Advocate shall be prohibited from
participating in political parties or organizations, carrying out any
other political, state or professional activities, or participating
in the steering bodies of social, economic or commercial
organizations. He may exercise the right to teach or be an author.
Article 11
Securing
the Previous Position of the People's Advocate
Upon termination of duty pursuant to items “a'
or “b” of Article 7, the People's Advocate shall have the right
to resume the public duty or position he occupied preceding his
election. If this is not possible, [he] shall be secured an
equivalent position.
CHAPTER III
COMPLAINTS, INVESTIGATIVE PROCEDURES AND
POWERS
OF THE PEOPLE'S ADVOCATE
Article 12
Locus
standi
Every individual, group of individuals or
non-governmental organization that claims that his/their rights,
freedoms or lawful interests have been violated by the unlawful or
improper actions or failures to act of the organs of the public
administration shall have the right to complain or notify the
People's Advocate and to request his intervention to remedy the
violation of the right or freedom.
The People's Advocate shall maintain
confidentiality if he deems it reasonable as well as when the person
submitting the complaint, request or notification so requests.
Article 13
Initiation
of the Proceedings
The People's Advocate, upon finding or suspecting
that a right has been violated, shall initiate an investigation [of
the case], upon the complaint or request of the interested or injured
person, or on his own motion if the particular case is in the public
domain and provided the interested or injured party consents.
Article 14
Conditions
of Admissibility of Complaints, Requests and Notifications
The People's Advocate may refuse to initiate or
may terminate the investigation of a case if the same case has been
decided or is being reviewed by a public prosecutor or a court. In
such a case, he shall be entitled to request information by those
authorities.
Article 15
No
Special Form Required For Complaints and Notifications
No special form shall be required for the
complaints, requests or notifications submitted to the People's
Advocate, provided the object of the complaint or request is clearly
indicated. The People's Advocate shall not accept anonymous
complaints or requests.
Article 16
Services
Free Of Charge
All the services rendered by the People's Advocate
with respect to the complaints, requests or notifications shall be
free of charge.
Article 17
Administration
of Complaints and Notifications
The People's Advocate, following the review of a
complaint, request or notification of a violation, shall decide to:
accept or refuse to look into the case;
send a reply to the interested person
indicating his rights and the remedies he can pursue to protect
those rights; or
Forward the case to a competent authority.
In all cases, the People's Advocate shall notify
the interested person [of his decision] within 30 days from the date
he received the complaint, request or notification.
Article 18
Procedure
after Admission of Complaints for Review
Following admission of a complaint, request or
notification, the People's Advocate shall proceed in one of the
following ways:
shall conduct himself an investigation;
shall request explanations from the organs of
public administration, as well as the public prosecutor in cases of
pre-trial detention and arrest;
Shall make a recommendation to the High State
Control to exercise its powers.
Article 19
Investigative
Procedures
In case the People's Advocate decides to proceed
with an independent investigation, he shall be entitled to:
conduct on the spot investigations;
request explanations from all organs of central
and local administration and obtain all files or material relevant
to the investigation;
interrogate any person that, in his judgement,
is involved in the matter under investigation;
arrange or request an expert opinion.
Article 20
Access
to Information or Documents Classified as State Secrets
The People's Advocate shall have the right to
request information or documents classified as state secrets that are
relevant to the case under investigation. In such cases he shall
comply with the rules for the protection of state secrets.
Article 21
Actions
and Powers after Conclusion of Investigation
Upon conclusion of an investigation, the People's
Advocate shall do one of the following:
explain to the complainant that his rights have
not been infringed;
make recommendations on how to remedy the
infringement to the administrative organ that, in his judgment, has
committed the violation;
make recommendations on how to remedy the
infringement to the authority supervising the administrative organ
that has committed the violation;
recommend to the public prosecutor to start an
investigation if he finds that a criminal offence has been
committed;
upon finding serious violations, propose to the
relevant authorities, including the Assembly, to dismiss officials
under their jurisdiction;
in case of infringement of right by organs of
the judiciary, the People's Advocate, without interfering with
their procedures, shall notify the competent authorities of the
violations;
recommend to the injured persons to take their
case to the court.
These actions are not mutually exclusive.
Article 22
Obligation
of Organs of State Administration to Respond to Recommendations of
the People's Advocate
The organs to whom the People's Advocate has
submitted a recommendation, request or proposal for dismissal shall
review the recommendation, request or proposal for dismissal and
shall reply within 30 days from the date the recommendation, request
or proposal for dismissal is delivered. The reply shall include
reasoned explanations on the specific case as well as the actions,
omissions or measures undertaken by that organ.
Article 23
Case
follow-up
If the People's Advocate does not consider
sufficient the reply or measures an organ has undertaken, he shall
have the right to refer the case to the higher organ in hierarchy. If
[the violations] are repetitive or the respective organ does not
respond to the recommendations of the People's Advocate, the latter
may present to the Assembly a report, which shall include proposals
for specific measures to remedy the violations.
Article 24
Right
of Legislative Recommendations
If the People's Advocate finds that it is the
content of a statute or other legal act, and not its application that
leads to violation of human right recognized by the Constitution or
other laws; he shall have the right to:
recommend to the organs vested with legislative
initiative to propose amendments and improvement to the statute;
propose to the Administration to amend and
improve substatutory acts; or
recommend to the Constitutional Court to
invalidate those acts.
Article 25
Persons
and Acts outside the Jurisdiction of the People's Advocate
The following shall be outside the jurisdiction of
the People's Advocate:
the President of the Republic; and
the Prime Minister.
The following shall also be outside the jurisdiction
of the People's Advocate:
statutes and other legal acts;
military orders to the Armed Forces; and
court decisions.
Without prejudice to item “c” of this Article,
the People's Advocate shall accept complaints, requests or
notifications of human right violations arising from the
administration of the judiciary and judicial procedures. The
investigations of the People's Advocate shall not infringe the
independence of the judiciary in deciding cases.
CHAPTER IV
RELATIONS WITH THE ASSEMBLY, OTHER GOVERNMENTAL
AUTHORITIES AND NON-GOVERNMENTAL ORGANISATIONS
Article 26
Report
to the Assembly
The People's Advocate shall submit an annual
report to the Assembly, which shall discuss it in a plenary session.
A copy of the report shall be submitted to the
President of the Republic and the Prime Minister.
Article 27
Special
Reports to the Assembly
In addition to the report provided by Article 26,
the People's Advocate shall report to the Assembly on his own
motion or upon written request of the Speaker of the Assembly or a
group of members of the Assembly. The Speaker of the Assembly shall
decide on whether the report shall be heard by:
the plenary session [of the Assembly];
distributing the report;
the standing committees of the Assembly.
A copy of the report shall be sent to the President
of the Republic, the Prime Minister and the highest administrative
authority, whose subordinate [authorities] are mentioned in the
report.
Article 28
Publication
of Reports
The annual and special reports shall be made
available to the public and shall be published no later than one
month after the date of their discussion by the Assembly. The
Assembly shall publish the reports.
Article 29
Drafting
Human Right Reports
The People's Advocate may assist, give opinions
and make recommendations in the drafting of reports and other
documents by the Albanian State on human rights and freedoms in the
Republic of Albania.
Article 30
Co-operation
with Non-Governmental Organizations
The People's Advocate shall perform his duties in
close co-operation with non-governmental organizations and shall
regularly request their opinion on the human rights situation.
The People's Advocate, in co-operation with
non-governmental organizations, shall organize, at least annually, a
national activity on the situation of human right and freedoms in the
Republic of Albania.
CHAPTER V
COMMISSIONERS, OFFICE AND BUDGET
Article 31
Structure
The Office of the People's Advocate shall have
three specialized sections; each headed by a Commissioner.
The sections shall be:
a section for the organs of central
administration, local government and third parties acting on their
behalf;
a section for the police, the secret service,
prisons, armed forces and the judiciary;
A general section in charge of all the issues
falling outside the scope of the two other sections, co-operation
with non-governmental organizations as well as studies and
activities in the area of human rights and freedoms.
Article 32
Appointment
of a Local Representative
If the People's Advocate deems it reasonable, he
may appoint a local representative for a specific matter and definite
time. The local authorities shall provide the representative with
office space and working conditions that shall be adequate for the
fulfillment of his duties under this Statute. The representative
shall be remunerated from the budget of the People's Advocate.
Article 33
Election
and Salary of Commissioners
The commissioners shall be selected from among the
most outstanding lawyers for a three-year term, with the right to
re-election.
The Assembly, upon the proposal of the People's
Advocate shall elect them. The requirements of Articles 3 and 10 of
this Statute shall also apply to election of commissioners. The
salary of the commissioner shall be equal to the two-thirds of the
People's Advocate's salary.
Article 34
Termination
of Functions and Removal of Commissioners
The rules in this Statute regulating termination of
functions and removal of the People's Advocate shall also apply to
the commissioners.
When the position of a commissioner remains vacant,
upon the elapsing of the 3-year term or pursuant to items “a”,
“c”, or “ç” of Article 7 as well as Article 8 of this
Statute, the People's Advocate, within one month, shall propose to
the Assembly the new commissioner to be elected.
Article 35
Employees
of the Office
The staff members of the Office of the People's
Advocate shall be members of the Civil Service of the Republic of
Albania.
“The structure and the organigram of the People's
Advocate's Office is defined by the People's Advocate”.
Article 36
Budget
The financial resources for the People's Advocate
shall be paid by the state budget, which shall have a separate
chapter [line item], for the People's Advocate.
The draft budget shall be proposed by the People's
Advocate to the Standing Committee for Economic, Financial and
Privatization Affairs [of the Assembly], which shall submit it to the
Assembly for approval pursuant to Statute nr.8379,
dated 29.7.1998, “On the drafting and implementation of the state
budget”.
The People's Advocate shall prepare every year his
accounts pursuant to Statute no 8379, dated 29.7.1998, “On the
drafting and implementation of the state budget”. The financial
records of the Office of the People's Advocate shall be subject to
review by the High State Control.
Article 37
Acceptable
donations
The People's Advocate may benefit from donations
in money or in kind. The donations may not include conditions that
might affect the independence, impartiality or constitutionality of
the People's Advocate's activity. The donations shall be declared
and registered in a registry held for this purpose by the Office of
the People's Advocate. The People's Advocate shall provide, by
the end of the year, the High State Control and the Standing
Committee for Economic, Financial and Privatization Affairs [of the
Assembly] with a copy of the registry each. The registry shall
include the type of donation, quantity, date [of donation], person
and mode of delivery of donation. The registry shall also include the
name and signature of the donor.
