Albania’s first standalone referendum law: a threshold analysis

By Renada Bici (Tirana Examiner Legal Desk)

Albania’s Constitution has guaranteed the right of direct popular participation since its adoption in 1998. Article 150 granted citizens the power to demand referendums on laws and issues of national importance. For 26 years, that guarantee existed on paper and nowhere else. The Electoral Code’s Part Nine provided a skeletal framework, but no standalone implementing law was ever adopted, no citizen-initiated referendum was ever organised, and the constitutional right remained functionally inert. The draft law now circulating under Socialist Party authorship is, in that sense, not merely a technical instrument. It is the first serious attempt to make a constitutional promise operational.

Parliament is considering a draft referendum law that would give Albania that standalone legal framework for direct democracy, replacing Part Nine of Electoral Code No. 9087/2003. The proposal covers three referendum categories, differentiated validity thresholds, a layered procedural chain involving the Central Electoral Commission, the President, and the Constitutional Court, plus a full electoral administration and campaign finance regime. What follows is a provision-by-provision reading of the draft’s most consequential features.

The three-tier architecture

Article 2 establishes three referendum categories: constitutional, general, and local. Within the general category, the draft further distinguishes between abrogative referendums (for repealing a law), ratificatory referendums (for approving a law of special importance), and consultative referendums (on issues of national importance). The local referendum, held within a commune, municipality, or region, follows a separate procedural track.

The consultative referendum deserves particular attention. Article 2(5) defines it as always advisory rather than binding, and Article 5 requires that no legislative initiative on the subject be already underway at the time the referendum request is filed. This anti-parallelism clause is logical in design but creates a verification problem: the draft assigns no authority the specific task of certifying whether a pending legislative initiative exists at the moment of a request. The KSHZ’s review under Articles 20 to 23 is narrowly framed around signatures and documentary regularity, not legislative calendars. A gap in institutional competence is visible here.

The validity thresholds

Article 3 establishes three participation thresholds, and the differences between them are substantively significant.

The constitutional referendum requires participation by at least 50 percent of registered voters, with the result determined by simple majority of valid votes. This is a high bar by European comparative standards. For context, Italy’s abrogative referendum requires 50 percent participation with a majority of valid votes; France has no minimum turnout requirement. At Albania’s current voter registration levels, the 50 percent threshold means roughly 1.9 million people must cast ballots for the result to count at all.

The general referendum for repealing a law sets a lower participation floor: at least 40 percent of registered voters must participate, and the result is valid only when valid votes constitute at least 30 percent of total registered voters. The structure here is slightly unusual. The two conditions are cumulative rather than alternative, meaning it is theoretically possible for 40 percent to participate but for the result to be invalidated if too many ballots are spoiled or blank. The drafters appear to have imported this dual-condition logic from Italian referendum jurisprudence, but the Albanian draft does not explain its rationale or define what counts as a valid vote separately from a cast ballot. This requires clarification.

The consultative referendum operates at the lowest threshold: 30 percent participation, with results valid when valid votes reach at least 25 percent of registered voters. Given the advisory character of this referendum type, the lower bar is defensible; the question is whether 25 percent of the electorate constitutes a sufficiently robust popular mandate to drive legislative action, particularly for constitutional changes that the consultative referendum is explicitly designed to precede.

Procedural chains and the Constitutional Court

Article 12 assigns the Constitutional Court a preliminary review function over constitutional referendums, citizen-initiated general referendums (Article 19’s 50,000-signature track), and Assembly-initiated general referendums on issues of special importance. The Court reviews only the question of whether the referendum falls within the prohibitions of Article 151(1) and (2) of the Constitution. It does not assess the political or substantive importance of the matter.

Two specific procedural sequences merit attention.

First, Article 13 addresses the two-thirds Assembly track for constitutional referendums. Under this provision, the proposed constitutional amendments are submitted to the Constitutional Court before a plenary vote in the Assembly. If the Court approves, the Assembly votes, and the President sets the date. The sequence therefore inverts the typical parliamentary procedure: constitutional scrutiny precedes adoption rather than following it. This is not inherently problematic, but it means the Assembly will vote on text that has already received a constitutional clearance stamp, which may affect the dynamics of parliamentary deliberation.

Second, Article 14 covers the one-fifth Assembly track, under which at least one fifth of deputies can request a referendum on constitutional amendments already adopted by the Assembly. Here the sequence is reversed: adoption comes first, then the referendum request within five days, then Constitutional Court review. Article 18(2) provides that if the Court rejects the referendum request as unconstitutional, the already-adopted constitutional amendments are promulgated by the President and enter into force not less than 15 days after publication in the Official Gazette.

The result is a procedural paradox that the draft does not appear to have deliberated. A minority of deputies invokes a constitutional right to subject an amendment to popular scrutiny. The Constitutional Court finds that invocation impermissible. The consequence of that finding is not a return to the status quo ante but an acceleration: the amendment enters into force faster than it would have had no referendum request been made at all. The minority’s exercise of a constitutional right thus produces, on failure, a worse outcome for the minority than silence would have. Whether this was the drafters’ intention is unclear. What is clear is that it creates a structural disincentive against using the one-fifth track, which may be the point, but if so it should be acknowledged openly rather than embedded in a subordinate clause of Article 18. Parliament should address this directly before adoption.

The 50,000-signature track for citizen-initiated referendums

Articles 19 to 25 govern citizen-initiated general referendums. The threshold of 50,000 registered voters corresponds to approximately 1.3 percent of the current electorate, placing Albania toward the more accessible end of the European spectrum. However, Article 22(3) imposes a significant procedural constraint: signatures may only be deposited with the KSHZ during the period from 1 January to 30 June of any given year. No justification is provided for this six-month window. The effect is to create an annual dead period during which no signature collection can conclude, potentially introducing a 12-month delay into the process depending on when a campaign begins. The drafters should consider whether a rolling or calendar-neutral submission window would better serve the constitutional right of direct popular participation under Article 150 of the Constitution.

Electoral administration

Chapter IV (Articles 41 to 58) creates a referendum-specific electoral official database, a training regime coordinated between the KSHZ and the Department of Public Administration, and a lottery-based selection mechanism for KZAZ and KQV commissioners. The database structure closely mirrors the existing electoral administration framework but adds a referendum-specific certification process.

Article 44 establishes a primary pool of eligible electoral officials drawn from public school teachers, civil servants, notaries, and local government employees with higher education. Article 44(3) opens the pool to civil society volunteers through NGO-submitted dossiers. This is a commendable inclusion that reflects lessons learned from the vetting of electoral commissioners in recent elections.

Article 47 selects commissioners from this pool by lottery. The mechanism is designed to neutralise partisan appointment pressure, but it displaces rather than eliminates it. Political competition simply moves upstream, to the certification stage: whoever controls the criteria for entering the pool effectively controls the composition of the pool from which commissioners are randomly drawn. The draft assigns the KSHZ sole authority over database management, inclusion, and removal under Articles 44 and 46, without establishing an independent audit mechanism or appeal path for exclusion decisions. A lottery is only as neutral as the list it draws from.

Article 74 mandates electronic voting for all local referendums and for at least two non-Tirana districts and four Tirana municipalities in constitutional and general referendums. Given that electronic voting for parliamentary elections remains pending implementation of the relevant Electoral Code provisions, this is an ambitious commitment. The article itself is silent on the interoperability of referendum e-voting systems with those currently under development for general elections, and on what fallback procedures apply if the technical infrastructure is not operational by the time a referendum is called.

Campaign and media rules

Chapter V follows the Electoral Code’s approach to broadcast media fairly closely, mandating equal airtime between pro and anti camps on public broadcasting, a prohibition on advocacy in the 24 hours before voting, and a five-day pre-vote ban on publishing polling results. Article 61(7) provides a notable exception: if one side has no declared representatives, the equal airtime rule does not apply, and available time may be used only to encourage participation rather than to advocate.

This exception is defensible but incomplete. The draft does not address the scenario where one side withdraws its representatives mid-campaign after airtime has been allocated. Nor does it establish a mechanism for formally recognising and registering the pro and anti camps as campaign entities, which would be a prerequisite for enforcing the equal airtime rules in practice. The Electoral Code’s provisions on campaign subjects were designed for political parties and coalitions, not for referendum coalitions, and the draft’s instruction to apply the Code by analogy (Article 1(1)) may prove insufficient here.

Financing

Article 69 requires the state budget to cover the administrative costs of constitutional and general referendums, with funds released to the KSHZ within 10 days of the presidential decree setting the date. Local referendum costs fall on the relevant district budget, following approval by the District Council. Article 70 lists permissible funding sources for campaign spending by referendum supporters and opponents: own income, membership fees, donations, and loans. The draft does not establish spending limits, disclosure thresholds, or a reporting obligation for referendum campaign funds. This is a significant omission by the standard the Venice Commission has consistently applied to referendum legislation. The CDL-AD(2007)008 Guidelines on the Holding of Referendums, adopted by the Commission for Democracy through Law, explicitly require that referendum campaign finance be subject to the same transparency and expenditure control rules as electoral campaign finance. The Albanian draft’s silence on limits and disclosure does not merely fall short of best practice; it falls short of a benchmark Albania has implicitly accepted through its EU accession commitments and its longstanding engagement with Venice Commission review processes.

Sanctions

The sanction schedule in Chapter X is notable for its relatively modest penalties. Article 81 sets fines for electoral officials at between 4,000 and 10,000 lekë for violations that do not constitute criminal offences. The upper figure represents approximately 95 euros at current exchange rates. Article 83 sets fines for electoral silence violations at between 100,000 and 500,000 lekë for private citizens and between 1,000,000 and 1,500,000 lekë for media outlets. Article 84 sets the maximum fine for broadcast violations related to advertising balance at 3,000,000 lekë (approximately 28,500 euros). Whether these figures are adequate deterrents for commercial broadcasters operating in a competitive advertising market is a question the drafters and the audiovisual regulator should address.

Transitional and abrogation provisions

Article 87 repeals Part Nine of Electoral Code No. 9087/2003 and all related provisions upon entry into force. Article 86 provides that referendum procedures already initiated before the new law’s entry into force remain valid to the extent they do not conflict with the new framework. Given the absence of any active referendum process in Albania at present, this transitional clause has no immediate practical effect but establishes an important precedent for continuity of procedure.

Assessment

The draft establishes a coherent foundational architecture. The three-tier category system is sensible, the Constitutional Court’s preliminary review function is appropriately scoped, and the decision to create a dedicated referendum law rather than an expanded Electoral Code chapter is the correct structural choice. That it has taken 26 years to reach this point is itself a finding: the absence of an implementing law was not an oversight but a sustained political choice. The current draft represents a reversal of that choice, and its baseline significance should not be obscured by the gaps that remain.

Those gaps are specific rather than fundamental. The campaign finance chapter needs spending limits and disclosure obligations keyed to the Venice Commission’s CDL-AD(2007)008 standards. The six-month signature submission window needs either a justification or removal. The dual-condition validity structure for abrogative referendums needs a clearer definition of the relationship between participant and valid vote. The electronic voting mandate needs an implementation roadmap and a defined fallback. The lottery-based commissioner selection mechanism needs an independent audit function to ensure the neutrality of the pool from which the lottery draws. And the Article 18(2) paradox, whereby a failed referendum request accelerates rather than simply blocks the entry into force of a constitutional amendment, needs explicit parliamentary deliberation before adoption.

Whether a Venice Commission opinion will be sought before the law is put to a vote remains unclear. Given the draft’s campaign finance gaps and the structural novelty of some of its procedural sequences, such a consultation would be consistent with Albania’s enlargement commitments and with the standard of legislative caution that a law of this constitutional weight demands.

Renada Bici is a Tirana-based lawyer practicing in civil, criminal, and administrative law. She holds a law degree from the University of Tirana and has experience in both private legal practice and public administration.