On the Identity of the Constitution of Albania: A Brief Analysis on the 25th Anniversary of the Constitution

Aurela Anastasi

University of Tirana

On 28 November 2023, the Constitution of Albania celebrated its 25th anniversary. Except for the 1946 Constitution, which established the communist regime in Albania, no other Constitution in Albania’s history has reached a quarter-century. This signifies the continuity of democratic processes but also represents a prolonged and challenging transition towards Albania's integration into the European Union (EU).

An analysis of the identity crafted by the Constitution over these 25 years would aid its implementation, particularly in the context of Albania's integration into the EU. It is crucial to examine how the Constitution – and not simply the “physical characteristics” of the state (Rosenfeld, 2012) – establishes a constitutional identity for the country.

Presently, constitutional identity is one of the most debated issues within constitutional theory, but it remains a concept lacking a conclusive definition. According to German constitutionalist Dieter Grimm, “[i]n a more prescriptive sense, identity refers to the fundamental principles of a constitution and the basic structure of the order it designs” (Grimm, 2022). This perspective correlates with the "basic structure doctrine" (see e.g., Albert, 2016). Moreover, “[t]here is an increasing international tendency, both in court decisions and legal writing, to distinguish between core, or fundamental, constitutional provisions which are given special status and regarded as unamendable (at least by a “standard” constitutional amendment process) …” (Polzin, 2016). The Albanian Constitution does not contain provisions prohibiting certain types of amendment and no concern has ever been raised with regards to this. This is despite the fact that in the 25 years since the Constitution was adopted, the frequent changes to the Constitution and the lack of comprehensive consultation processes - which in some cases was driven by political opportunism - have been disturbing.

Supranational identity

In the context of Albania's integration into the EU, we can categorize its Constitution as having a supranational European identity, as per the theory presented by American constitutionalist Michel Rosenfeld (Mjeku, 2019). This definition typically refers to EU member states, which are “…nowadays much closer than the members of a confederation” (Groppi and Simoncini, 2023). Although Albania is currently not a member of the EU, it actively participates as a candidate country engaged in the accession negotiation process. However, the Constitution exhibits a clear supranational identity alongside its internationalist character. This characteristic establishes a shared identity with Constitutions formulated after the downfall of the communist regime and aligns with the Constitutions of Western Balkan countries (Cukani, 2014).

The creation of this 'supranational identity' is notably manifested through the 'integration clause' (as it is referred to in scholarly doctrine) in Article 122/3 of the Albanian Constitution, which establishes the superiority of norms issued by international organizations over domestic law. Two related clauses are the delegation of competencies to international organizations (Article 123) and the establishment of a 'symmetrical limitation of rights' (Traja, 2002) in harmony with the European Convention on Human Rights (ECHR) (Article 17/2). Additionally, the supranational identity was reaffirmed through a constitutional amendment introduced during the Judicial Reform in 2016 (Anastasi, 2021). This amendment made provision for a temporary advisory body, the ‘International Monitoring Operation’, to support the transitional re-evaluation process of judges and prosecutors.

Constitutional jurisprudence has also played a pivotal role in shaping Albania’s supranational constitutional identity. The Constitutional Court of Albania has made numerous interpretations regarding the relationship between international and domestic law. It has placed significant importance on Article 5 of the Constitution, which states, “The Republic of Albania applies international law that is binding upon it”, epitomizing the international nature of the Constitution (Decision of the Constitutional Court of Albania, no.186_2002). However, within the framework of integration processes into the EU, there is a need for a judicial interpretation of the ‘integration clause’ in Article 122/3. This clause lacks a precise reference to the EU and appears entirely open-ended. Although constitutional scholarship has delved into this matter, an interpretation in the ‘official doctrine’ (as it is called by the Constitutional Court itself) is crucial in defining the extent of supremacy ‘above the country's law’ and the ‘direct application’ of norms derived from this organization.

Albanian scholarly doctrine asserts that international and supranational law have supremacy over all legal norms, including the Constitution. In Estonia, this supremacy has been defined as the "unlimited priority" of EU law (Tupay, 2022). Nevertheless, the Constitutional Court of Estonia, in a 2022 decision, highlighted a nearly identical clause, stating: "the principle of the priority of EU law applies to Estonia's entire national law, including the Constitution [...], provided it does not conflict with fundamental constitutional principles” (Tupay, 2022). The defence of national constitutional identity also finds support in EU legislation, encompassing both the Treaty of Lisbon and the EU Charter of Fundamental Rights.

Fundamental principles

Returning to Grimm’s concept of constitutional identity, it is essential to emphasize that the fundamental principles outlined in the Constitution of Albania generally represent universal common values. This prompts the question of what specific values we can consider as defining Albanian constitutional identity. During an open discussion at the Faculty of Law, University of Tirana, marking the Constitution’s 25th anniversary, we received diverse responses by scholars to this question. Some highlighted aspects such as inter-religious coexistence and harmonious living with the country's minorities. Another notable and unique aspect that was highlighted is Article 17/2 of the Constitution, which, unlike most other Constitutions, provides that limitations on human rights under the Constitution may not exceed the limitations provided for under the ECHR. This clause has been extensively developed not only by the Constitutional Court but also in the case law of the European Court of Human Rights , giving our Constitution a distinct identity (see: Agonset SH.P.K. vs. Albania, Gerd Gjinarari vs. Albania, Adrian Fullani vs. Albania).

Nevertheless, attention was also directed toward Article 3 in connection with Article 8 of the Constitution. These provisions protect the “national rights” of Albanian people residing beyond its borders, safeguard Albanian citizens living abroad, and assist them “...in preserving and nurturing their connections with the national cultural heritage” (Article 8). The implementation of these provisions creates a unique constitutional identity, given that about 1.68 million Albanian citizens (approximately 37%) reside outside the country's borders (Instat, 2020). Therefore, besides the ‘supranational identity’, we could also refer to a ‘transboundary national identity’. These perspectives could be further explored if the Constitutional Court provided a constitutional interpretation of Article 8.

However, in its ruling on the voting rights of Albanians in the diaspora, the Constitutional Court pointed out that while the Electoral Code generated legitimate expectations for Albanian citizens living abroad, there are no clear provisions for their voting rights (Decision of the Constitutional Court of Albania no.38_22). Consequently, it directed the Parliament to address this legal gap within a year. Effective voting rights for diaspora Albanians would reinforce the ‘transboundary national identity’ of the Constitution. There are concerns about the lack of remaining time for the Parliament to meet the deadline, given the absence of adequate preparations to ensure the timely implementation of the decision of the Constitutional Court. This delay has also raised other questions about the proper conduct of the 2025 parliamentary elections.

In conclusion, it is beneficial to continue discourse on Albanian constitutional identity to ensure respect for and effective implementation of the Constitution, with the latter subject to persisting concerns.

Aurela Anastasi is Professor of Constitutional Law at the University of Tirana

Suggested Citation: Aurela Anastasi, ‘On the Identity of the Constitution of Albania: A Brief Analysis on the 25th Anniversary of the Constitution’ IACL-AIDC Blog (14 March 2024) On The Identity of The Constitution of Albania: A Brief Analysis on the 25th Anniversary of the Constitution — IACL-IADC Blog (blog-iacl-aidc.org)