Law for building a new national theatre - Tailor-made laws in the Western Balkans and Turkey

Law No. 37/2018 on Defining a Special Procedure for the Assessment, Negotiation and Signing of a Contract for the "Planning and Realisation of the Urban Project and the Building of the New National Theatre"

Act of Parliament

Topic: Defining a special procedure for the negotiation of the project for building a new national theatre. Once the theatre and other private investments (commercial towers) are built, the mandate of the law will be considered fulfilled.

Affected: Private companies

Territory: Municipality of Tirana

Temporal: Until abrogated

Adopted on 20 September 2018 by Parliament (in force since October 2018)

The Ministry of Culture and the Ministry of Finance. It was submitted by the Council of Ministers (government).

The Council of Ministers (government)

1. Council of Ministers Decision (CMD) No. 180 of 13 April 2000 grants the protected cultural heritage status to the main axis and historical centre of the city of Tirana, including the national theatre building.
2. Council of Ministers Decision No. 325 of 12 April 2017, which defined the historical centre of Tirana and adopted the regulation for its administration, omitted the national theatre building from the area with protected status (see here).
3. On 16 February 2018, the private company Fusha SHPK submitted an unsolicited proposal to the Municipality of Tirana proposing to build a new national theatre in exchange for permission to build several commercial towers on public land owned by the municipality of Tirana (see here). Fusha SHPK has been awarded contracts worth several million euros by the Municipality of Tirana since the current mayor, Erion Veliaj, was elected for the first time in 2015 (see here).
4. Tirana Municipality submitted Request No. 6848/1, dated 23 February 2018, to the Ministry of Culture containing the unsolicited proposal. Following the provision of additional information by the Municipality (Letter No. 6848/6 dated 14 May 2018 to the Ministry and Letter No. 186/1 dated 9 March 2018 to the Institute of Construction), the Ministry of Culture issued Order No. 315 of 16 May 2018, establishing a working group to assess the proposal. On the same day, the working group issued its opinion in Letter No. 3427/1 dated 16 May 2018, suggesting the involvement of other central institutions (see here).
5. The following day, the Ministry of Culture sent Letter No. 3466 dated 17 May 2018 to the office of the prime minister. The prime minister then invited the Ministry of Culture and the Ministry of Finance to propose a draft law. A draft special law was published on 10 June 2018 on the government’s public consultation portal (see here).
6. The draft special law was submitted to Parliament on 28 June 2018 by the government, which specified that the negotiations for the PPP to build the new national theatre would be conducted with the private Company Fusha SHPK. The special law was adopted on 5 July 2018.
7. The president refused to sign the law and returned it to Parliament for reconsideration. In the meantime, the European Commission raised concerns that the special law was in breach of the Stabilisation and Association Agreement (SAA) between Albania and the EU (see here and here).

Parliament

Yes. Tirana Municipality launched a public call for offers. To date, however, no information has been published by the municipality as to which company was selected and how the negotiations progressed. On 17 May 2020, the old national theatre building was demolished based on a questionable decision of the Municipality Council (see here).

The president refused to sign the law and returned it to Parliament for reconsideration on 27 July 2018 (see here).
Some of the key arguments made by the president included that the law was in breach of constitutional provisions of legal equality and economic freedom as well as of the European convention on cultural non-material heritage. He further addressed the issue of local government autonomy and the balance of powers, arguing that the law was in breach of the SAA with the EU.

Parliament rejected most of the president's arguments and finally adopted the law on 20 September 2018, reflecting only on the EU's concerns regarding the breach of the SSA. However, the president issued another decree on 11 October 2018 emphasising that Parliament had adopted the president's decree but ignored eight of the nine arguments against the law elaborated by the president (see here). On 24 July 2019, the president then brought the case to the Constitutional Court, which has been unable to function for over two years due to a lack of a quorum (see here).

The president also brought a second case regarding the theatre to the Constitutional Court, which continues to be inoperative (see here). He considers the Council of Ministers Decision to pass the site of the National Theatre from the Ministry of Culture to the Municipality of Tirana to be unconstitutional (see here).

The old theatre building was demolished on 17 May 2020 (see here).

The direct beneficiary is Fusha SHPK, which would benefit from public land in the most exclusive and most expensive part of Tirana. Fusha SHPK is owned by a family member of the former prosecutor Petrit Fusha.

In 2019, Fusha led a criminal investigation into the death of a teenage boy, Ardit Gjoklaj, at a waste treatment site that was given to another private company through a concession by the municipality of Tirana (see here).

Some investigative media cast doubt on the prosecutor’s decision not to include responsible persons from the Municipality of Tirana in the prosecution file. In October 2016, an investigative programme (PUBLICUS) on Vizion+TV made serious allegations over Gjoklaj’s death (see here). Permission was not granted for the second part of the programme to be broadcast by Vizion+TV, which is owned by the Dulaku family, which has close ties to the Socialist Party and has considerable business interests in Tirana Municipality (see here, here and here).

Over the period 2015–2018, Fusha SHPK has received nearly €36 million in public contracts, most of which have come from Tirana Municipality (see here).

Artists, citizens of Tirana and Albanian citizens

The impact on the rule of law is manifold. Firstly, regular legal procedures are circumvented by introducing special conditions by law. The decision regarding the public land owned by Tirana Municipality should have been taken by the Municipal Council. However, the ruling majority of the central government did not control a majority of the Municipal Council at the time. To avoid going through the Municipal Council and to speed up the process in a more controlled way, an amendment to Law No. 139/2015 was adopted by Parliament in June 2019.

At the time Special Law No. 38/2018 for the national theatre was adopted, Article 54 of Law No. 139/2015 on local self-governance stipulated that decisions regarding the change in ownership of public land must be approved by a qualified majority vote at the Municipal Council. In June 2019, this article was changed from a qualified majority vote to a "simple majority vote". The amendments to Law No. 38/2019 were rejected by the president but approved by Parliament (see here).

Moreover, by adopting a law to regulate the process, corruption is legalised. It also means that the "masterminds" and implementers of this operation cannot be prosecuted because the PPP was regulated by law.

The only legal remedy is to challenge the law and the process at the Constitutional Court. However, due to ongoing judicial reform, the Constitutional Court is not yet fully functional (only one judge from the former team of judges at the court has passed the vetting process).

On 24 July 2019, the president of Albania submitted a case to the Constitutional Court of Albania, requesting that it examine the law on the grounds that it was in breach of the Constitution and the SAA with the EU for the following reasons (see here):

• the law contains discriminatory provisions that affect competition and are in breach of constitutional provisions on legal equality and economic freedom;
• breaches principles on decentralisation and the autonomy of local government;
• breaches the principle of legal certainty;
• does not guarantee the protection of public property etc.