General legal framework

• Author: Irma Baraku
• Pages: 16-16

16

1 GENERAL LEGAL FRAMEWORK

Constitutional provisions on protection against discrimination and the

promotion of equality

The C onstitution of Al bania deals with non-discrimination through a general disposition,

Article 18:

‘1. All are equal before the law.

2. No one may be unjustl y discriminated against for reasons such as gender, race,

religion, ethnicity, language, political, religious or philosophical beliefs, economic

condition, education, social status, or parentage.

3. No one may be discriminated against for reasons mentioned in paragraph 2

without a reasonable and objective justification.’45

The Constitution pr ovides a closed list of protected grounds, which does not include age,

sexual orientation and disability. Despite the wording ‘reasons such as…’, the list of

protected grounds is not open- ended. There is n o relevant case law on the protected

grounds.

In 2016, during the implementation of justice reforms in Albania, the first draft of

amendments to the Albanian Constitution introduced sexual orientation as a protected

ground under the Constitution. At this time, the Venice Commission adopted an opinion

welcoming the addition of sexual orientation as a pr ohibited ground of discrimination to

Article 18 of the existing Constitution. The Commission also recommended making an

open list of grounds, or potentially rephrasing the relevant article to include other

opinions, gender identity, social origin, property, birth or other status, etc.46

This led to a strong reaction by the public and lawyers who linked t he change to the

possibility of allowing ‘gay’ marriage (as this could lead to the Fam ily Code being

challenged as unconstitu tional, given its legal provision of the institution of marriage).

This point of view was supported by some MPs who conditioned their vote on the

constitutional changes on the removal of the relevant amendme nt from the draft.47

The provisions apply to all areas covered by the directives. Their material scope is

broader than those of th e directives, as the Constitution does not specify the areas but

provides only a g eneral obligation t o respect the principle of equality an d non-

discrimination.

The provisions of the Constitution are directly applicable, except when the Constitution

provides otherwise (Article 4).

These provisions can be enforced against private individuals as well as against the state.

According to the Albanian Constitution, ‘The fundamental rights and fr eedoms and the

duties set out in the Constitution also apply to legal persons, so long as they comport

with the general purposes of these p ersons an d with the core of these rights, freedoms

and duties’ (Article 16(2)). [official translation]

45 Constitution of Republic of Albania, 1998, amended in 2007, 2008, 2012, 2015 and 2016.

https://euralius.eu/index.php/en/library/albanian-legislation/send/9-constitution/178-constitution-of-the-

republic-of-albania-en.

46 Venice Commission (2015), Opinion No. 824, Interim opinion ‘On the draft constitutional amendments on

the judiciary of Albania’, adopted by the Venice Commission at its 105th Plenary Session, Venice, 18-19

December 2015, p. 4:

https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL(2015)052-e.

47 There are currently no moves to include sexual orientation among the protected grounds provided by the

Constitution.