Diana Bahçja, a week after giving birth to her baby in January 2023, was arrested and imprisoned. This is because in 2015, Diana did not pay a 250 thousand Lek fine imposed by the Court of Tirana. At the same time, on the other side of the same city, in a completely different reality, the Ministry of Europe and Foreign Affairs has been refusing for 3 years to implement a decision of the Administrative Court to provide information on how office holders spent taxpayers’ money on official trips. However, the MEPJ that rejects the Court’s decision does not face any consequences at all.
Jona Plumbi
From 2020, Faktoje is waiting for the Ministry of Europe and Foreign Affairs to implement Decision 1932 dated 18.09.2020 of the Administrative Court, as it should happen in any democratic country where the separation of powers works. The Administrative Court decided that Faktoje has the right to receive information on the expenses of the office holders’ official trips abroad.
The court considered the Ministry’s refusal to provide such information as illegal. Part of the court’s decision was also the obligation for the MEPJ to provide the information immediately, regardless of whether the case goes to appeal or not. This form of decision in the legal dictionary is called “temporary execution”, which means that the court’s decision must be implemented immediately.
This has not happened yet.
What did Faktoje ask for?
On July 8, 2019, Faktoje sent requests for information to the addresses of all ministries and the Prime Minister’s Office, where it was requested to make available the receipts and expenses of the holders on trips abroad for the period January 2018-June 2019.
The Ministry of Justice was the first to respond within the deadline by making available all of its officials’ travel receipts. Within the same time , the Ministry of Education, Sports and Youth responded and did the same.
But after the article published by Faktoje, where it was shown that one night’s accommodation of the minister amounted to 700 euros, other institutions were hermetically sealed and refused to provide information, violating the law on the right to information. With the failure of the mediation of the Commissioner for the Right to Information, Faktoje, with the legal assistance of the Republic, sued all institutions, including the Prime Minister,’s Office in the Administrative Court.
By the end of 2020, Faktoje managed to win the trial at the first instance of the Administrative Court with 8 out of 11 responding institutions. For 6 of them, the court decided the immediate execution of the decision, that is, that the invoices be made available at the end of the trial in the first instance, even though the losing parties (state institutions) have opposed these decisions on appeal. But the President’s Office and the Ministry for Europe and Foreign Affairs continue to refuse to implement the decision.
Decision of the Court
Court decisions with immediate execution are used only for a small number of cases, when the implementation of the decision without wasting time is “vital” for the plaintiff. Lawyer Irena Dule, who represented Faktoje in this legal battle, explains the argument used for the case in question.
“ We appreciate asking the Court to grant the immediate execution of the decision, as a journalist’s request for public information must be answered quickly. Information is “a perishable commodity”, as the Strasbourg Court also states in its decisions, so it has value if it is given in real time. Providing it late makes the information invalid. The journalist does not seek the information for personal consumption, but to distribute it to the public .” – explains lawyer Irena Dule.
*Civil Procedure Code, Decision for immediate execution (in legal jargon called provisional execution)
Lawyer Irena Dule explains that the Court of Appeal requires at least 5 years to judge a case. Giving information after such a long time causes the loss of timeliness and relevance. This was also the argument of the Administrative Court when it gave the decision in favor of Faktoje.
The court said that the delay caused by the appeal of this decision by the Ministry brings serious consequences for obtaining the requested public information, leading to the loss of the actuality of the information and consequently its importance. ” For this reason, the decision should be given for temporary execution “. – argues the court.
What actually happened
The law provides for cases where the defendant (in this case the Ministry of Foreign Affairs) does not implement the Court’s decision voluntarily. Then, the Bailiff Office comes “into play” to enforce the decision.
Therefore, in 2020, the Bailiff Office notified the Ministry that it still has the obligation to provide Faktoje with information on the minister’s travel expenses, as well as to pay 93,600 ALL as a fee for the bailiff service.
The Bailiff Office requires the implementation of the court’s decision
The Bailiff Office requires the implementation of the court’s decision
Despite this, the Ministry for Europe and Foreign Affairs continued to refuse to provide information, claiming to have appealed the court’s decision.
MFAE, stubborn in breaking the law
The Ministry of Europe and Foreign Affairs has been above the law for 3 years.
Year 2020
After MFAE refused to implement the court’s decision, the Bailiff Office continued with the standard procedure. It turned to the State Treasury in December 2020, to place a seizure on the spending unit of the Ministry of Foreign Affairs.
Bailiff Office requires the treasury to seize
Bailiff Office requires the treasury to seize
On December 22, 2020, the Treasury ordered the blocking of the budget funds of the Ministry of Europe and Foreign Affairs, in favor of Faktoje.
Enforcement decision on the blocking of MFAE budget funds
This did not encourage the Ministry to implement the court’s decision.
The year 2022
In November 2022, the Bailiff Office once again asked the MFAE to implement the decision to provide the information requested by Faktoje, otherwise the person responsible for not implementing the court decision in the MFAE would be fined 50,000 ALL.
Enforcement requires the implementation of the decision or a fine to be paid by the responsible person in the MEPJ
Bailiff Office requires the implementation of the decision or a fine to be paid by the responsible person in the MEPJ
This time the Ministry chose to respond in writing, proving its illegality.
The Ministry refuses to implement the court’s decision
The Ministry refuses to implement the court’s decision
The Ministry assumes the role of the Court
In December 2022, the MEPJ addressed a letter to the bailiff office. Taking the role of a judge, the MEPJ interpreted the decision given by the Administrative Court in 2020, calling it wrong, ” overstepping and misinterpreting the law “.
*facsimile of the MEPJ’s response to the request for information from the enforcement office, December 2022
In fact, the Code of Civil Procedure has solved the ‘problem’ faced by the Ministry of Foreign Affairs. Article 139 of the Code allows special appeal of the obligation to provide information immediately. According to the law, the institution can appeal the decision, after having implemented it first. In the case when the Court of Appeal annuls the first decision of the court, then the plaintiff [Faktoje] returns to the defendant [MEPJ] all that he received by temporary execution.
*Civil Procedure Code
But the Ministry considers this procedure unfair to its interest, so it decided independantly to reject the implementation of the decision of the Administrative Court.
Refusal as a criminal offense
Lawyer Irena Dule explains why the Ministry, like any debtor to the state, cannot refuse to implement the court’s decision, regardless of whether it considers it fair or not.
“Refusal to implement an enforceable decision is a criminal offense. Our legislation provides mechanisms to seek compensation in the event that a decision, after execution, is overturned by a higher court. This is the law, practice and system we have agreed to be a part of. Any resistance, justification for doing otherwise, is immaturity and has up to criminal consequences for the person responsible, who in this case is the General Secretary of the Ministry.” – explains the avoat Dule per Faktoje.
Therefore, the bailiff office, which has the task of implementing the court’s decision until the end, has fined the General Secretary of the Ministry of Europe and Foreign Affairs, Gazmend Turdiu, with 50,000 ALL.
The execution fines the General Secretary of the MEPJ
The latter has sought opposition to the actions of the bailiff office, for which another session will be held in the Civil Court, continuing the delay in the implementation of the Court’s decision for even more time.
Conclusion
The law in Albania is not equal for everyone. When it comes to the responsibility of state institutions, neither the separation of powers nor state legal procedures can force the Ministry of Europe and Foreign Affairs to implement the court’s decision.
If the Ministry of Europe and Foreign Affairs was an ordinary citizen, today Faktoje would have received the information it is entitled to according to the Court’s decision, the MEPJ would have paid the two fines imposed by the enforcement office, or responsibility for not providing information and making the payments would have been imprisoned for violating the court decision.
This is what happened to the expectant mother who was imprisoned 8 days after the birth of the baby, for non-payment of a fine of 250,000 lek to the state. Meanwhile, the Ministry of Europe and Foreign Affairs and its General Secretary, Gazmend Turdiu, who have been violating the Court’s decision for 3 years, do not face any consequences at all.
Faktoje is continuing the legal battle to get its right recognized by the court since 2020 for other institutions that refused to implement the immediate provision of information, such as the President’s Office of the Republic of Albania.
