Forced Response of the AHC to the Prime Minister's Advisor: Mr. Kadilli Hurried

Human Rights Can Only be Limited By Law, Not by Decision

On January 16, 2006, the Albanian Helsinki Committee reacted publicly through a statement to news that a draft-decision would soon be submitted to the government for approval. The draft-decision would forbid the employment of family members and relatives of senior officials and former officials in the customs, tax administration, and public procurement sectors. The AHC suggested that the draft should not be approved as it was in contravention of the Constitution and legislation in force.

Daily “Korrieri” of January 29, 2006, published an interview of Mr. Fatbardh Kadilli, advisor to the Prime Minister on anti-corruption issues. On the reporter's question about the fact that, “Meanwhile, the project was opposed by the Albanian Helsinki Committee arguing that it was in violation of the Constitution and employment equality,” he responded: “There are numerous limitations of this nature and this is not the first occasion. I am surprised by the sensibility of the Albanian Helsinki Committee toward phenomena of this nature. I would understand, maybe, protecting someone who stands accused, but not opposition to legal regulation. The Constitution gives the law the right to establish certain limitations. I do not think it is someone's human right to work in the customs or tax administration sectors. Let the Albanian Helsinki Committee protect human rights and what is granted by law. If something is provided for by law and such law is not in contravention of the Constitution, then I believe that there is a deformation or misunderstanding on their part.”

That Mr. Kadilli does not agree with the AHC statement, it is understandable and normal.

Nevertheless, the Committee decided to give a clarifying response because some concepts outlined in the above-mentioned interview appear, in our view, wrong.

First, Mr. Kadilli is surprised by the sensibility of the AHC toward such phenomena, but he does not explain what he means with the phrase “such phenomena.” If the AHC would not be mindful and would not react toward actions, measures, or phenomena that violate citizens' rights and freedoms sanctioned in the Constitution of the Republic of Albania, it would not justify its 15-year existence.

Item one of the AHC statute says that the Committee's leading mission is the protection of and respect for citizens' freedoms and rights;

Second, his comment that “he would understand protecting someone who stands accused, but not opposition to legal regulation,” in the Committee's opinion, is not only unclear, but also wrong. The duty of the AHC is to react when actions to the citizens' detriment are carried out, in contravention of the law. The AHC reacts even in those cases when relevant legal provisions or sublegal acts harm citizens' legitimate freedoms, rights, and interests.

Mr. Kadilli goes too far in advising the AHC to hush in cases of legal regulations, or when this organization considers something provided for by law anti-constitutional.

He knows very well that the Constitutional Court, in considerable cases involving legal provisions or constitutional acts, has declared their anti-constitutionality precisely because they were in violation of citizens' rights and freedoms sanctioned in the Constitution of the Republic of Albania.

Third, we do not want to believe that Mr. Kadilli said, “I do not believe that it is someone's human right to work in the customs or tax administration sectors,” considering it is known that the citizen, “is free to choose his/her own profession, job, and professional qualification system” (article 49 of the Constitution), that citizens are equal before the law (article 18 of the Constitution), and that, in keeping with the law, citizens may work anywhere, that is, even in the customs or tax administration sectors.

Fourth, we agree with that part of the interview when Mr. Kadilli says that human rights can be limited through a law that is not in contravention of the Constitution and that this is not the first case. There is only one thing we do not understand: why does he equate the draft-decision (approved to have a broader reach) that limits human rights with the law?!

In principle, both us and Mr. Kadilli are of the same opinion that the limitation of human rights is determined by law. Considering that, the draft or the decision are not in keeping with article 17 of the Constitution that reads: 1. The limitation of the rights and freedoms provided for in this Constitution may be established only by law for a public interest or for the protection of the rights of others. A limitation shall be in proportion with the situation that has dictated it. 2. These limitations may not infringe the essence of the rights and freedoms and in no case may exceed the limitations provided for in the European Convention on Human Rights.”.

Looking at the contents of the above provision, it results that when the limitation of human rights and freedoms provided for in the Constitution is in question, the sole body to evaluate the terms and criteria necessitating their limitation is the Assembly of Albania.