The definition of discrimination

• Author: Irma Baraku
• Pages: 17-33

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2 THE DEFINITION OF DISCRIMINATION

2.1 Grounds of unlawful discrimination explicitly covered

The following grounds of discrimination are explicitly prohibit ed in the main legislation

(listed in the Introduction, the main legislation transposing and implementing the

directives) transposing the two EU anti-discrimination directives :

- The Albanian Constitution:48 Gender, race, religion, ethnicity, languag e, political,

religious or philosophical beliefs, economic condition, education, social status, or

parentage.

- The Law on protection from discrimination (LPD):49 gender, race, colour,

ethnicity, language, gender id entity, sexual orientation, political, religious or

philosophical beliefs, economic, education or social situ ation, pregnancy, parentage,

parental responsibility, age, family or marital condition, civil status, residence,

health status, genetic predispositions, disability, affiliation with a particular group or

for any other grounds.

- Labour Co de:50 gend er, ra ce, colour, ethnicity, language, gender identity, sexual

orientation, political, religious or philosophical beliefs, economic, educational or

social status, pregnancy, parentage, parental responsibility, age, family or marital

status, health status, genetic predispositions, disability, living with HIV / AIDS,

union or affiliation with trade union organisations, affiliation with a particular group,

or any other cause.

- Criminal Code:51 Article on crimes against humanity (Article 74) covers political,

ideological, racial, ethnic and religious grounds; Article on insult based on racist or

xenophobic motives through computer systems (Articl e 119(b)) covers ethnic

affiliation, race, religion; Article on violation of equality of citizens (Article 253)

covers origin, sex, sexual orientation o r gender identity, health status, religious and

political beliefs, trade union activity, ethnic, national, racial or religious affiliation;

Article on promoting hatred or strife (Article 265) covers race, ethnicity, religion or

sexual orientation.

- Law on the promotion of employment:52 This Law covers disadvantaged

jobseekers in the labour market, such as individuals with orphan status in difficult

economic conditions, people with disabilities, parents of children with disabilities,

persons over the ag e of 55, person s from the Roma and Egyptian communities,

long-term u nemployed jobseekers, unemployed jobseekers having immigrated not

more than two years previously, minors and y oung people in conflict with the l aw,

young people under the age of 29, victims of gender- based violence and domestic

violence, mothers under the age of 18, etc. (Article 3(4)).

- Code of Administrative Procedure:53 Article on the principle of equality and non -

discrimination cov ers gender, race, colour, ethnicity, n ationality, lang uage, gender

identity, sexual orientation, political, religious or philosophical beliefs, economic,

educational or social status, pregnancy, parentage, parental responsibility, age,

family or marital status, place of residence, h ealth status, genetic predispositions,

disability, belonging to a particular group or any other grounds (A rticle 17).

- Law on the protection of national minorities in the Republic of Albania:54

The Law prohibits discrimination against any person due to his or her affiliation to a

national minority (Article 8(1)).

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

49 Law No. 10 221/2010 on protection from discrimination.

50 Law No. 7961/1995, the Labour Code, amended in 2003, 2008 and 2015.

51 Law No. 7895, the Criminal Code (Kodi Penal), 27.1.1995, amended in 2013.

52 Law No. 15/2019 on the promotion of employment (Për nxitjen e punësimit).

53 Law No. 44/2015, the Code of Administrative Procedure of the Republic of Albania,

https://euralius.eu/index.php/en/library/albanian-legislation/send/6-administrative-procedure-code/229-

code-of-administrative-procedure-en.

54 Law No. 96/2017 on the protection of national minorities in the Republic of Albania.

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- Law on the inclusion of and accessibility for p ersons with disabilities:55 Th e

article on principles provides for the non-discrimination of person s with disabilities.

2.1.1 Definition of the grounds of unlawful discrimination withi n the directives

The protected grounds are only listed in Article 1 of the LPD, u nder the heading, ‘Object’.

However, having an open list of p rotected grounds ensures the ability to address cases of

discrimination based on ‘other grounds’.

Although the Law on protection from discrimination contains a section on definitions,

there are no definitions for any of the grounds of discrimination protecte d by this Law.

Albania has ratified many in ternational treaties and conventions, inclu ding the European

Convention on Human Rights, the Framework Convention on National Minorities, the

United Nations Covenant on Civil and Political Rights, the United Nations Covenant on

Economic, Social and Cultural Rig hts, the International Convention on the Elimination of

All Forms of Racial Discrimination, the Convention on the Elimination of all Forms of

Discrimination Against Women, th e Convention on the Rights of Persons with Disabilities

and the Convention on the Rights of the Child.

The aut horities can take into consideration the definitions of t he discri mination gr ounds

provided by the international treaties and conventions mentioned above, as well as

jurisprudence such as the case law of the Strasbourg Court and the CJEU.56

a) Racial or ethnic origin

Race, ethnicity, language are protected grounds u nder the Constitution, whereas the LPD

also mentions colour, or affiliation to a particular group. Albanian legislation does not

contain definitions for racial or ethnic origin.

Before the adoption of the Law on the protection of national minorities in 2017, there

was no definition of the concepts of national or ethnic minority, nationality, etc. This

issue has b een highlighted by the Con stitutional Court. In a decision, it declared

provisions that obliged citizens to state their ‘nationality’ in civil status registers to be

incompatible with the Constitution. The Court has made a detailed analysis of the

concept of nationality understood as citizenship and nationality understood as belonging

to an ethnic minority or national origin, referring to international acts an d conventions.57

The national minorities in Albania are th e Greek, Macedonian, Aromanian, Roma,

Egyptian, Montenegrin, Bosnian, Serbian and Bulgarian minorities. The definition of

‘national minority’ is provided by the Law on the protection of national minorities in the

Republic of Albania:58

‘A national minority is a group of Alban ian citizens residing in the territory of the R epublic

of Albania, who have early and stable ties with the Albanian state, exhibit distinctive

cultural, ethnic, linguistic, religious or traditional characteristics and who a re willing to

express, preserve and jointly develop th eir distinct cultural, ethnic, linguistic, religiou s or

traditional identity’ (Article 3(2)).

55 Law No. 93/2014 on the inclusion of and accessibility for persons with disabilities.

56 Baraku, I. and Hoti P. (2013), ‘The concept of discrimination and other concepts related to it in the Albanian

legislation – comparative overview with the EU directives in the anti-discrimination field’, 4th International

Conference on European Studies – Social, Economic and Political Transition of the Balkans, EPOKA

University, Tirana, 8-9 November 2013.

57 Constitutional Court, Decision V-52/11 of 1.12.2011, paragraphs 15-19,

http://www.gjk.gov.al/web/Lista_e_Vendimeve_92_1.php.

58 Law No. 96/2017 on the protection of national minorities in the Republic of Albania.

http://www.qbz.gov.al/Botime/Akteindividuale/Janar%202017/Fletore%20196/Ligj%20nr.%20962017,%20

date%2013.10.2017.pdf.