By P̒PARIM KALO
Signing of Memoranda of Understanding between institutions of the Albanian State has been so obvious lately, that one can see there has become a kind of a trend. Several Memoranda were signed between ministries, where the ones between the Ministry of Interior and General Prosecution Office and between High Council of Justice and Ministry of Justice. It goes without saying this process should be applauded, as it is a means that tries to push institutions by strengthening their cooperation.
In order to deal with two matters from the content point of view, I think it is worth mentioning that Memoranda are known as
preliminary legal instruments that prepare all conditions for the negotiation and signing of final and binding agreements. They have a declarative nature and contain terms that, as a matter of fact, are not binding, as opposed to contracts or agreements. Memoranda are more typical in the in the relations between states, bilateral or multilateral. Often they are used as treaties in the ambit of international organizations where signing parties are members to, and when the terms of Memoranda are well defined, or as the saying goes they are “tailor-made” from legal point of view. The two matters that deserve attention are related to the nature, status of Memoranda.
Firstly, I think the institutions that sign the memoranda of Understanding should be genuine parties, in the strict meaning of “a party”. As a matter of fact, we have witnessed signing between institutions that could not be parties as they are on the same side, i.e. institutions of a government, which is not separable. The fact that such institutions enjoy the status of a legal entity means they have legal capacity to enter into agreements with legal entities that are parties as legal entities. In other words, the Ministry of Energy and Industry may sign a Memorandum of Understanding with the corresponding institution if Macedonia or Kosova or elsewhere, or with the University of Tirana. Similarly, it is acceptable that the Ministry of Justice signs a Memorandum of Understanding with the Data Protection Commissioner, but the signing of the Memorandum of Understanding between the High Council of Justice and the Ministry of Justice or the one between the Ministry of Interior and the Ministry of Interior and the General Prosecution Office or any other similar memorandum, in my opinion, do not contribute to the law enforcement. On the contrary, they may produce adverse effects. It is true that there are cases in advanced democratic countries that institutions sign Memoranda of Understanding internally, but this practice in our fragile Albania with a democracy yet to be solidified, where institutions are not very accountable for the law enforcement failures is still early to be experimented.
Secondly, there is a risk that Memoranda of Understanding soften (if not excessing the law) the obligations set out in the laws. So, with or without any intention, the Memoranda somehow “depreciate” the effective laws and obligations originating from them. So, when the Ministry of Interior signs a Memorandum of Understanding with the General Prosecution Office it looks like the cooperation between them against organized crime, for example, is voluntary and not a legal obligation. As well, Memoranda may smoothen the responsibility of institutions if something happens due to failure of one or the other institution to fulfill the obligations as per their functions, because it is possible that they may refer to their obligations under the Memorandum of Understanding and not obligations provided by law, thus trying to escape from being held responsible, and will play table tennis with the fault, thus trying to attribute it to the other party.
At the end of the day, although Memoranda of Understanding are sign to support the law enforcement, before reaching the point of signing them, it would be advisable to exhaust, at first, the existing remedies, such as supervision from supervisory authorities and the accountability of institutions and their legal representatives. In the law enforcement is put in the agenda of law enforcement agencies and supervisory authorities, as well as decision-making authorities that are involved in the law enforcement process, by also taking the necessary measures, there are reasons to believe the Memoranda that replace or go
beyond the law will be obsolete.
