Normalization Amid Many Difficulties

“Some good signs but still much to do.” This evaluation of the situation in the country, as it was made last September by the meeting of the Executive Committee of IHF, which was held in Tirana, (see our Report for July-September 1997) proved to be realistic, as a whole. For the most it is still valid, even when talking about the period covering October to December 1997.

During the past months the AHC has organized and carried out a series of fact-finding missions all over the country. First, the southern districts, which have been among the most hurt by the destructive wave of last Spring, were visited. At mid November several districts were also visited in the North.

The AHC monitors witnessed on the spot that, despite many obstacles and shortcomings there are some timid signs of functioning of the public administration and its different bodies. We should give tribute to all people concerned, because they are making their job devoutly among many difficulties. Notwithstanding, the efforts deployed and without denying certain important achievements, the functioning of the public order of the local power and of the legality as a whole leave much to be desired and is still far from the requirements of the rule of law.

The AHC groups found that there are everywhere still substantial shortcomings for a normal life to be re-established. In most of these towns and places the police organs are deprived of some basic means. They lack facilities, premises for detention, even elementary means of communication, as in Permet (southern Albania), where the police didn’t have even a hand-radio. There is a misunderstanding between the competent organs as about the cases when detainees are released and this has had a negative impact on their cooperation.

The prosecutor offices are, for the most, deprived of the necessary documentation and in several cases this brings about that those incriminated are left free, following the lack of proofs. The results obtained by the police forces in the process of normalization, were seriously put in doubt at mid December, when some criminal attacks were launched by organized groups against police which suffered heavy casualties. The latest developments brought to the fore once again the lack of cooperation between the organs concerned. On this occasion the Minister of Interior, Neritan Ceka, accused the prosecutor office for having decided the release of a member of a dangerous criminal gang, responsible for the killing of 3 policemen in the small town of Ballsh (southern Albania).

A dramatic report was published in the newspaper “Shekulli” (Century) at the beginning of November. It gives an idea of the gravity of the problems still very acute, as far as public order is concerned. The situation in the town of Fier and the area around (central Albania) is described in the most dramatic terms. The local director of the department of the public order was reported to have said that there are not less that 9 criminal gangs operating in Fier and around, they are responsible for all sorts of crimes as killings, robbery, burning and destructive action, rape, etc. The result has been during the first half of this year: 155 dead, several hundreds wounded, many public institutions destroyed. The forces of public order are now more effective, assured the director. The chief gangs are now identified and they will be brought soon before justice. Another not less important aspect of the fight against crime- the director added- is the reform in the ranks of police. So far 25 officers and 72 policemen have been fired on the motivation of lack of professionalism and even of corruption. 34 new officers and 112 policemen are now in service.

Another matter of concern during the last period is a new wave of criminality in particular in the big cities as Tirana, the capital, and Durres, the main sea-port. Responsible people of the police point out that a new phenomenon is being observed: crime is now more organized and is getting more sophisticated. The motives are mainly economic and social, because unemployment is widespread, but revenge is not to be excluded. In a statement delivered to the press, the chief of the police in Tirana considered as insufficient the protection given by law to the keepers of public order and called on the Parliament to take more tough measures to combat efficiently the crime. Under the present circumstances, police feel rather unable to do the job, as it should be,- the chief police added.

Sometimes the new government is inclined to confer the responsibility for the situation created to the previous government. So did the Minister of Interior, Neritan Ceka, who came out at the beginning of November accusing the former president Sali Berisha for having abused, while in power, of the constitutional right of according pardon to persons condemned to long-term detention. The Ministry of Interior made public a list of 58 criminals, condemned for murder, robbery, rape, who were released under presidential decrees during March-July of the current year. Among them 12 were submitted to 15-25 years of detention. Allegedly, they are now at large. In the opinion of the Minister of Interior this was done on purpose, with the clear intent to destabilize further the situation.

The evaluation of the Albanian situation by the international actors most concerned is not less important. Indeed, a second international Conference on Albania was held as planned in Rome at mid October. The main task of the Conference was to strike a balance of the latest developments in the country after the elections on 29 June. The main point in the evaluation of the situation is that the participants in the debate expressed satisfaction and in particular at the achievements obtained in restoring order. “The period of emergency is now behind”, - the Italian Foreign Minster L. Dini, Chair of the Conference, said. But full normality is not yet reached, so necessity for further support was also stressed as e precondition for Albania to reach. There has been controversial interpretation of the outcome of the Conference by the government and the opposition. While Prime Minster Nano, back from Rome assessed the results higher than expected, the leader of the opposition, S. Berisha, commented that it was a setback as the assistance accorded was much less than the government asked for. The opposition tends to take this as a sign of “isolation in which the government finds itself on the international scene”.

What characterizes the most the Albanian situation at this stage is the growing tension between the government and the opposition. On October 20, the 4^th Congress of the Democratic Party, the biggest opposition party, was held in Tirana. The leader of the Party, S. Berisha, declared that his Party doesn’t recognize any more the 29^th June elections as a political solution for the country. That was considered acceptable under precise circumstances but there cannot be enduring peace without new elections. In his report to the Congress Berisha attacked all the polices of the present establishment, especially the Parliament, the government, the fiscal reform, the changes in the administration, the amendments in the basic constitutional provisions. He strongly criticized also the foreign policy blamed the government for losing credibility. It follows from the works of this Congress, that the Parliamentary Group of the Democratic Party is not likely to return to the Parliament, so they are oriented towards increasingly demanding new elections to be held. The 4^th Congress of the Democratic Party ended the day after, October 21, with the election of former president Sali Berisha as chairman. In his conclusive speech he reiterated his demand for new election to be held within six months.

Addressing a meeting held in Kavaja (central Albania) end of December, Berisha, indicated March 22, 1998 as the day of new elections.

Some facts and incidents of the latest period have brought to the fore an acute problem related to the functioning of rule of law, that of the relationship between the central government and local administration. The problem resides in the fact that local power has not yet found the appropriate place in the new democratic order. It is not an exaggeration if we say that people, ordinary citizens hardly know that there is a self-governing administration, which is also an elected power.

There is a vague feeling about below down, but also on a top level, what makes this more serious that local administration is being counted for little. Judging from the experience of the past years after the fall of the totalitarian regime, the only conclusion to draw is that there hadn't yet been a clear break with the centralized practices of the past. The mentality and the methods still prevail, according to which almost everything is concentrated in the hands of the central government.

A recent event served to remind of the importance of the problem. Representatives of the local power from various districts met in Tirana at the beginning of November to discuss their relations with the central government. They blamed it of having blocked the funds for the local administration. In a second move a couple of days later local administration went to strike in many places in a sign of protest against the central government. The municipality in the capital of Tirana was also closed. The Government denounced the move calling it as politically motivated and having nothing to do with the real needs of the citizens.

Without denying eventual motives behind this initiative, the AHC has expressed its concern about the situation of the local power since mid of October. It is a real fact that municipal administration has been often neglected and even ignored. It is an urgent task to take appropriate measures in order to allow the local administration to fulfill its functions and to be counted.

The situation, in which the local organs of self-governing find themselves, is linked, certainly, to the fact that the elections held during the last 5 years have brought to power the majority, while the local power went to the opposition. So was in 1992 and the same is at present. The AHC appreciates the gesture of Prime Minister Fatos Nano, who apologized publicly for the incident that happened a couple of days before to a meeting of Mayors. He said that "nobody has the right to hurt the authority of the representatives of local power and the use of violence against them is punishable not only from a moral point of view, but also by law". The Mayor of the capital Mr. Albert Brojka, reacted in the same manner, when he called this a civic gesture.

It was to give praise in particular to what Prime Minister said about the commitment of his Government to the idea of national reconciliation and that of the realization of the separation of powers, between the central and local power, what remains to be practically achieved. It is time to realize that the key towards the normalization of the country is to improve the functioning of local power. Local power is an essential element of the rule of law. Sometimes the local administration is more important for ordinary people, for the public at large, which for the most should refer to local bodies for realizing the human rights and resolving their problems. Without an efficient local power there cannot be a real implementation of human rights standards, which are even more important and more sensitive on local level.

Under the present circumstances, more than usually, local power, its normal functioning is most necessary and urgent. Therefore, some initiative should be taken immediately to try to rehabilitate the local administration, to strengthen the municipalities so that they are able to accomplish their duties at the service of the citizens. It is time to address this problems all the more that legislation on local power seems to be in the phase of its revision. Besides, the country is facing at present the fundamental task of drafting and approving the new constitution. Since 1991 Albania is trying in vain to have a normal and complete constitution, which would replace the Basic Constitutional Provisions now in force. Needless to say that local power, its composition and competences will be part of the new Constitution as one of its chapters.

Taking into account the importance of the problem and the urgent need to deal with, the AHC with the full support and cooperation of the International Helsinki Federation (IHF), has proposed to undertake a project to improve the observance of human rights at a “grass-roots” level, to sensitize the authorities in the country and the relevant fora abroad to take urgent steps for the improvement of the situation of the local power. This Committee has already prepared a draft on this question and the relevant program is scheduled for a full year term.

The AHC, in the course of this project, will engage in a series of fact finding missions, one in each of the most important districts of the country (a district is composed of various administrative units). The most sensitive problems will be addressed in relation to the effectiveness of local organs in protection of the rights of the citizens. Some missions in small towns, particularly in districts near the capital Tirana, will be completed within one day. Others will require considerably longer, including transport time, at least 3-5 days.

Experienced personnel from IHF and from similar organizations abroad will be invited to participate in key missions. Some special literature should be translated from foreign languages into Albanian to bring more knowledge on the relevant practices in the most advanced countries. At the conclusion of each mission, the Committee will hold a round table with local leaders: city, town and district officials, judges, representatives of the public order, women’s groups, teachers and school managers and influential citizens. At each round table the members of the mission will report on what they have learned about the community and will give to the participants a chance to discuss the problems and to propose solutions. It will be also a good opportunity to involve in this project students of the Faculty of Law.

As the year-long project draws toward a close, the Committee will hold a two-day national conference in Tirana, inviting local leaders from the districts to discuss the situation as a whole and to draw the relevant conclusions. The Committee, with assistance from the IHF, will produce a short report on each fact-finding mission and a longer report on the national conference. Provision is made also in the project for the preparation of the press releases on significant findings and for the distribution to the media both in the country and abroad

It’s a matter of profound satisfaction that this project has met already with the good understanding of the Austrian Government, which has decided to support it financially it and has now signed the relevant contract full-year-term with the IHF.

Some changes in the field of legislation have been a matter of concern for the Albanian Helsinki Committee during the year and as a result this Committee since the Constitutional Court asking for its interpretation in the light of the basic constitutional provisions now in force.

It will be remembered that in December 1996, the Parliament approved three important laws: firstly, the Law NR. 8175: “On some changes to be introduced in to the Criminal Code” and two other Laws NR. 8180, 8181 introducing additional changes in to both the Code of the Criminal Procedure and the Civil Procedure.

On this occasion, the AHC reiterated its position that any innovation in legislation should be in compliance with the constitutional principles and criminal and procedures norms. Consequently, soon after, in February 1997, the following remarks were formulated in a particular statement:

By the above mentioned Law NR. 8175, the Parliament decided to introduce strongly fixed sanctions in the Criminal Code. Our objection in this regard was that the method of fixed sanctions contradicted the Introductory Part of the Criminal Code, in which problems like the determination of the main responsibility in the offense committed, the part of the accomplice in it, the extenuating or aggravating circumstances of the case are addressed. According to the new law, the room for the judge to examine the case was substantially restricted. Indeed, the pre-fixed term of condemnation doesn’t leave any space for the evaluation of all the circumstances.

The role of the defense was also very much limited and was strictly reduced to the debate about the culpability or innocence. In a few words, the new situation was very much likely to damage the debate before the Court, as no criminal doing can be brought in to a strict definition and, as such, won’t respond always to a pre-determined sanction. It was quite clear that this innovation was fully at the expense of the defendant’s rights in a penal proceeding.

The same Law contained Article 43 of a procedural nature. The defendant rights were once more violated: it provided for enlarged competence for the prosecutor in the penal cases falling under the said Article: “48 hours were accorded to him for the decision on the arrest to be issued, instead of 24 hours previously.” Furthermore, the Court was given the right to decide on as about the measure to be taken within 5 days, following the prosecutor’s request.

In the statement of the AHC, it was noted that these changes according to Article 43, newly approved, fell in to contrast with Article 5 of the Constitutional Law on “Human Rights an Fundamental Freedoms”, which wants this measure to be limited within 48 hours.

In addition to this, Article 43 violated the right of the person caught red-handed or in a pre-trial detention, by empowering the prosecutor to suspend a Court decision on his release through a recourse to the Appeal or Supreme Court. This was contrary to Article 47 of the Code of Criminal Procedure, which provides for that any decision about personal freedom cannot be suspended anyway.

On their turn, the Laws NR. 8180 and 8181 gave authority to the General Prosecutor to act “in the interest of the law” by appealing against a decision taken by a 1^st degree or a 2^nd degree court and by the Criminal Branch of the Court of Cassation, as well. In the same statement the AHC remarked that such an authority accorded to the prosecutor, represented a new role, which was not provided for either in the law on the organization of the judiciary or in the Codes of Penal and Civil Procedure. The new rule was likely to put the prosecutor in a quite unedited position, contradicting the constitutional law on the: “Organization of the judiciary” of 1992. In fact, the prosecutor’s function is there clearly defined as that of pursuit in the stage of investigation and that of judgment; so to say the role of a party both in penal and civil proceedings, while in the new re-created situation, the prosecutor was given the quality of the “strong” party in the process, once he got the authority to suspend a decision taken by the court.

To summarize: while fully realizing the reasons which suggested such a move of the Parliament of last year, the AHC noted that due attention was to be paid to the constitutional law and the fundamental principles of justice. It was precisely with this purpose that the AHC addressed the above mentioned remarks both to the concerned parliamentary commissions and in particular to the Constitutional Court, as well.

The Constitutional Court took in to consideration the questions raised by the AHC in a special sitting end of March 1997. However, the Court made public its decision two months later, end of May. Firstly, the law on the prefixed sanctions was proclaimed as unconstitutional and consequently invalidated. It follows that since then the courts have been bound to act accordingly in compliance with the decision of the Constitutional Court.

As for the other part of the demand of the AHC, that means questions deriving from Article 43, the Constitutional Court was not able to express immediately its opinion and their examination was postponed.

The Constitutional Court turned back to these questions in two different sittings. In November 1997 the question of the prosecutor’s right to act “in the interest of the law” by appealing against the decision of a first and second degree court and by the Criminal Branch of the Court of Cassation was examined. The Constitutional Court in its decision fully accepted the point of view of the AHC and decided that no such an authority should be given to the prosecutor “to act in the interest of the law” in both penal and civil proceedings. Thus, the position of prosecutor was reconfirmed as a party in the process.

In a second sitting on December 5, 1997 the Constitutional Court made public also its decision concerning Article 43. Once more the remarks of the AHC were fully accepted and Article 43 was proclaimed unconstitutional. It follows that all those concerned should apply the norms as provided for by the law “On Human Rights and Fundamental Freedoms” and by the Code of Penal Procedure, as well. On the same occasion, the amendment according to the prosecutor authority to suspend a court decision on the release of a detained person was also abrogated.

In its last meeting the Constitutional Court expressed acknowledgments to the initiatives taken by the Albanian Helsinki Committee trying to improve legislation both in the phase of its formation and implementation. We cannot but appreciate the attention paid by the Constitutional Court to the remarks formulated by the AHC and the relevant decisions. However, we should express our regret that the examination of the problems has been delayed for a period of several months. This pushed the Albanian Helsinki Committee to renew its remarks on the matter at the beginning of November and to invite the Constitutional Court not to postpone any more their examination. We hope the style of the work of the Constitutional Court will change in the future.

A team of monitors of the AHC conducted a series of talks and observations within a two month period, in some prisons and detention sites as well, and in the jail hospital. The group of monitors had preliminary contacts with the Attorney general Mr. Arben Rakipi, the General Director of Prisons, Mr. Dalip Zhabolli, the directors of prisons 313,325 and those of detention sites in Tirana, Kukes, Peshkopi, Tepelene, Permet, Gjirokaster, Sarande etc.

During all the process our monitoring groups had contacts with the prison directors, with the local attorney's office, courts, lawyers offices as well as detainees themselves. The monitoring missions were headed by the AHC coordinator Ilirian Zhupa with the legal assistance of the legal adviser Niazi Jaho. Other members of the Committee as Zana Sota, Korab Hoxha, Blerina Jaho and other AHC activists, students of the Faculty of Law and Social Sciences such as Entela Bodinaku, Sonila Reçi, Enina Rota, Albana Qatipi and Blerta Selenica took part in these missions.

a) A few words about the recent background: On March 13, 1997 all prisons in Albania were opened and March 14 is recorded as the first day without any prisoner in the country.

In talking with the General Directorate of Prisons, they admit the grave current situation but they add that continuous efforts are made to abide to the norms and rules as promulgated by the actual Albanian law, as well as by international instruments. There are only three prisons now at function, a forth one is underway to be soon efficient. Other four prisons are expected to be reconstructed to reach the number of those at work before the crisis. This will require not only special administrative measures to be taken, but also additional financial efforts, which this government hardly could afford without foreign assistance.

In spite of frequent requests for a new regulation of the regime in the prisons, which is also provided for in Article 33 of the Penal Code in force since June 1995, life in Albanian prisons is still regulated by an Ordinance issued by the Ministry of Justice dated 05/07/1994. In fact Article 33 of the Penal Code requires the approval of a special law describing the conditions in which the detainee should suffer his/her penalty, with a special reference to their rights and duties. Up to now, no such a law has been approved, although there are allegations that the relevant draft has been prepared. The AHC has more than ones insisted upon the urgent necessity to complete legislation on this issue.

Situation in the now functioning prisons. From the visit our group made in prison 325, the following information was obtained. This prison is registered as a low security prison. For the most this prison serves as a penitentiary for men. There is a distinct sector with a capacity of 120 persons. The day of our observation there were 96 persons serving their penalties. We were told that 75 % of them returned voluntarily to jail, whereas the rest where apprehended by police. Our group found out here again that there is no division in age groups and crime categories, adults and minors stay together.

A special department here is reserved to women. As of 22 September 1997, there were only 7 women serving penalties out of 30 who have been serving before the opening of the prisons in March of the current year. The majority of them have returned voluntarily with the hope that they would benefit a 1/3 decrease of their penalty. They serve penalties which range from 15 to 22 years. With the exception of prisoner L.C. charged on crimes against humanity, who has now been released following a decision by the Cassation Court, the rest suffer their penalties for the crime of homicide.

Generally speaking one cannot deny that there is a process going on towards the re-establishment of the penitentiary system along more advanced standards. Although some results are already obtained, a lot remains to be done amid various difficulties.

During our visits, we were able to collect some useful information.

The conditions in the prisons are not observed in accordance with the nature and character of the crimes committed, all groups are put together without making any distinction as for the age; in fact there is no prison for minors functioning in the country. All categories of prisoners suffer their penalties in the same areas: i.e. those of high security, semi opened prisons and opened ones.

Our monitors had also the opportunity to talk with various detained persons and to collect their testimonies. Some of the most frequent complaints formulated are as follows:

	a majority of those we met complained about the quantity and quality of food;
	some prisoners voice their concern of their correspondence being opened;
	good or bad behavior do not change anything in their treatment en bloc;
	there is a separate compartment inside the prison used for religious rites, and a dentist and medical room as well, but according to the prisoners, the most necessary medicaments are lacking and frequently they are forced to purchase them by themselves;
	prisoners are not given the possibility to work, the employment of prisoners under the present conditions exist only on paper;
	women questioned complained that in no instance they were offered the opportunity to benefit from their legal right to participate in joys and sorrows of their families; this was confirmed also by other prisoners in the men’s compartment who say that so far there has been no case of temporary leave to participate in joys and sorrows of their families;
	a serious problem is that of the delayed investigation.

The responsible officials we met expressed their concern on this matter. The chief of anti-crime unit in the police commissariat of Kukes (northern Albania) said for AHC that, due to difficulties for processing all cases in the first instance, most of persons detained have passed all limits as fixed by law. A concrete case was mentioned on this occasion, that of Ismet Sokoli, who is under investigation since September 1996. While talking with him in the prison, our group found out that, despite his frequent protests, still until mid November 1997 the district attorney’s office and the district court have not jet fixed a date for his trial;

there has been an isolated case of complain for use of violence in the police commissariat of Kukes;

the testimony of the lawyer S.D deserves special attention. He confirmed that during his experience in defending his clients he has faced many obstacles. When the judicial police wants to hide the maltreatment inflicted on a detainee, an order of alert is issued and under this pretext all contacts with the clients are canceled. Another matter of concern is the fact of taping on the detainees. No lawyer has ever been present in this process. The AHC believes that in this case the law has been violated. According to the Code of Penal Procedure, Article 223, paragraph 4 "The defendant and the representatives of the parties concerned are immediately informed on the acts deposited in the court and on their right to look at them and listen to registrations. The court after hearing both sides in the process, decides on the removal of the taped material and minutes, which cannot be used anymore".

At the conclusion of this series of monitoring missions, the AHC feels obliged to recognize that in general it was given all opportunities to make its job. The relevant authorities should be acknowledged for their availability both in Tirana and in other districts. However, we believe that we cannot keep silent about a particular case in Burrel (central Albania), where we encountered a lack of availability for our monitoring group to visit the detention centers. The chief of anti-crime unit of the local police refused to collaborate with our monitors, who were not allowed to go in despite the fact that they were duly authorized by the relevant central authorities. Our group was admitted to visit only the pre-detention cells, which were in abhorrent conditions. Whereas from the detention cells, which they could not visit, there came a suffocating smell.