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10 May 1995
Doc. 7304
1403-5/5/95-4-E
REPORT
on the application by Albania
for membership of the Council of Europe
(Rapporteur: Mr KELCHTERMANS,
Belgium, Group of the European People's Party)
Summary
Albania has been functioning as a multi-party democracy since the elections in spring 1991. Immense economic and material difficulties have persisted since the collapse of the dictatorship. However, substantial legal reforms have already been made and commitments to further reforms and to the protection of minorities have been entered into. In a highly volatile geopolitical context, the restraint of Albanian foreign policy in the face of rising tensions is a factor of stability in the region. The time has come to invite Albania to join the Council of Europe.
I. Draft opinion
1. Albania applied to join the Council of Europe on 4 May 1992. By Resolution (92) 9 of 21 May 1992, the Committee of Ministers asked the Parliamentary Assembly to give an opinion, in accordance with Statutory Resolution (51) 30 A.
2. Albania has been functioning as a multi-party parliamentary democracy since the elections of 31 March and 7 and 14 April 1991. The Assembly sent observers to these elections. In the light of their observations and of subsequent political developments, "special guest" status was given to the Albanian Parliament on 25 November 1991. Since then, both government and opposition have been able to make their positions known in Strasbourg.
3. Further elections were held on 22 and 29 March 1992. Assembly observers concluded that they opened the way for closer relations between Albania and the Council of Europe, with a view to subsequent membership — subject to review of the position of the ethnic Greek minority (notably in the south).
4. Since May 1992, following Albania's application for membership, Assembly committees and their rapporteurs have paid repeated visits to the country — most recently, on the occasion of the constitutional referendum of 6 November 1994.
5. In January 1993 a joint European Commission/Council of Europe programme of co-operation in the fields of human rights and the rule of law was set in train. The programme addressed inter alia the training of judges, lawyers and the police; reform of the prosecution, of the judiciary, of the ministry of justice, and of prisons; the drafting of civil and penal codes and the corresponding codes of procedure.
6. A report confirming progress on the conformity of legislation in Albania with general principles of the Council of Europe and the European Convention on Human Rights was delivered by two eminent jurists to the Bureau of the Assembly on 15 October 1993.
7. Although the draft constitution submitted to referendum in November 1994 was rejected, this left Albania neither in a constitutional vacuum, nor with the communist constitution of 1976. From April 1991 to September 1993 a framework for democracy was built through eight laws of a constitutional character. These laws establish a parliamentary republic. They provide for the separation of powers. They embody a list of human rights and fundamental freedoms, following consultation of international and European experts.
8. Despite current political difficulties impeding a fresh initiative, a new constitutional commission is expected to be established with representatives of the parliamentary parties and with international consultants — inter alia from the Council of Europe and the Venice Commission "Democracy through Law".
9. Criticism will persist in regard to Albania's judicial and penal systems and the administration of justice. Clearly, the elements of a judicial and legal culture necessary for the "rule of law" — as compared with the elements of a market economy and of "civil society" — need more time to become implanted and to make felt their effects. Progress must be assessed in the context of immense material difficulties, following the collapse of an isolationist totalitarian dictatorship.
10. By March 1992, oppression, fear and hunger had driven Albania to near-anarchy, with mass efforts to flee the country and total reliance on humanitarian aid. Today, however, the physical appearance of Albania is transformed. A market economy is emerging. From being completely closed to outside influence, the society is both outward-looking and animated. This transformation suggests that the right policies and legislative priorities have been chosen.
11. The situation is nonetheless precarious. For the most part, water is only available for a few hours a day. Leaks are causing contamination. Sewage is being discharged without treatment. Electricity networks are badly overloaded. These are causes of great hardship. Also, they are a risk to health and safety.
12. Albania thus continues to need international aid and massive infrastructural rehabilitation. It is tragic that the transition to democracy and a market economy should have coincided with a heightening of tensions on Albania's northern and southern borders — substantially due to the break-up of the former Yugoslavia. Such tensions have been a radical disincentive to investment.
13. A welcome relaxation of tension on Albania's southern border has been matched by a re-affirmation of the legal and constitutional bases of Albania's policy towards minorities — notably to the effect that no religious community will be deprived in practice of an opportunity to flourish (letter of 13 February 1995 from the Speaker of the Albanian Parliament to the Chairman of the Political Affairs Committee). The fact that this commitment will be monitored by the Council of Europe should provide continuing reassurance to ethnic minorities and communities in Albania.
14. In regard to minorities and communities of Albanian ethnic origin in the Federal Republic of Yugoslavia (Serbia and Montenegro), notably in the neighbouring and formerly autonomous province of Kosovo (where ethnic Albanians are said to account for virtually 90% of the population) and in the Former Yugoslav Republic of Macedonia (where ethnic Albanians account for 23% of the population), the restraint of Albanian foreign policy in the face of rising tensions has served to maintain stability in the region.
15. Albania's new civil code has been in force since November 1994. A code of civil procedure is being drafted with the help of Council of Europe experts. A new penal code and a code of criminal procedure were adopted, respectively, on 27 January and 21 March 1995 and will enter into force, respectively, on 1 June and 1 August 1995. On 23 March 1995, agreement was reached on a second joint European Commission/Council of Europe programme for reform of the legal system.
16. On the basis of
i. Albania's commitment in relation to minorities and continuing developments in the field of legislation;
ii. Albania's existing constitutional provisions;
iii. the participation of a "special guest" delegation of the Albanian Parliament in its proceedings since 25 November 1991;
iv. the establishment of "political dialogue" between the Albanian Government and the Committee of Ministers,
the Assembly considers that Albania, in the sense of Article 4 of the Statute, is able and willing to fulfil the provisions for membership of the Council of Europe as set forth in Article 3: "Every Member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of (its) aims".
17. Accordingly, the Assembly, on the understanding that Albania intends:
i. to sign the European Convention on Human Rights at the moment of accession; to ratify the Convention and Protocols Nos. 1, 2, 4, 7 and 11 within a year; to recognise, pending the entry into force of Protocol No. 11, the right of individual application to the European Commission and the compulsory jurisdiction of the European Court (Articles 25 and 46 of the Convention);
ii. to make every effort to sign and ratify within a reasonable period Protocol No. 6 of the European Convention on Human Rights, concerning the abolition of the death penalty;
iii. to sign and ratify the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment;
iv. to sign and ratify the European Framework Convention for the Protection of National Minorities, and to conduct policy towards minorities on the principles set forth in Assembly Recommendation 1201 (1993);
v. to seek settlement of international disputes by peaceful means (an obligation incumbent upon all member states of the Council of Europe);
vi. to co-operate fully in the monitoring process for implementation of Assembly Order No. 508 (1995) on the honouring of commitments entered into at the time of accession on issues related to the Council of Europe's basic values and principles, as well as in monitoring processes established by virtue of the Committee of Ministers' Declaration of 10 November 1994 (95th session);
vii. to study, with a view to ratification, the Council of Europe's Social Charter and the European Charters on local government and for regional or minority languages, and meanwhile to conduct its policy in accordance with their principles;
viii. to study, with a view to ratification, and meanwhile to apply the basic principles of other Council of Europe conventions;
ix. to sign and ratify the General Agreement on Privileges and Immunities, and its Additional Protocol,
Recommends that the Committee of Ministers:
i. invite Albania to become a member of the Council of Europe;
ii. allocate four seats to Albania in the Parliamentary Assembly.
II. Explanatory memorandum
by the Rapporteur
1. Albania's achievements and continuing difficulties are now well known in the Council of Europe. Since 1991, when the totalitarian regime was clearly collapsing, an ever-closer relationship has been established. This relationship has developed through reports on elections and meetings, both parliamentary and intergovernmental; through repeated visits by Assembly rapporteurs (most recently, by those of the Committee on Relations with European Non-Member Countries and on Legal Affairs and Human Rights, 20-21 December 1994); and through continuing "political dialogue" with the Committee of Ministers and, through Albania's "special guest" delegation, with the Assembly and its committees.
2. The rapporteur of the Political Affairs Committee, together with the rapporteur (for opinion) of the Committee on Legal Affairs and Human Rights, observed the constitutional referendum which was held in Albania on 6 November 1994. In the light of this experience a preliminary assessment of Albania's request for membership was presented to the Political Affairs Committee at its meeting in Paris on 2 December 1994 (document AS/Pol (1994) 43 — see Appendix I). The committee approved this document for distribution. It contains an appraisal of the significance of the people's rejection of the draft constitution proposed by the President and the Government of Albania (42% for, 54% against). This appraisal is reproduced in paragraphs 6 to 8 of the draft opinion.
3. In addition to other grounds of criticism (for example: shift of power to the executive branch of government, no secure guarantees for the independence of the judiciary), the draft constitution contained an article which caused grave concern to the Orthodox Christian community, especially those of Greek ethnic origin.
4. Partly as a result of representations made to the committee by our colleague Mr Pavlidis, member of the Greek parliamentary delegation (document AS/Pol (1995) 2), and partly to recall an oral assurance given to the rapporteurs in Tirana in November as to Albania's acceptance of a mission of the Inter-Parliamentary Union in connection with the imprisonment of former Prime Minister Fatos Nano, correspondence was entered into with the Chairman of the Albanian "special guest" delegation and the President of the Albanian Parliament (see Appendices II and III). The committee was informed at its meeting in London on 14 March 1995 and approved the rapporteur's proposals for updating and revising the "preliminary assessment" (document AS/Pol (1995) 14 — see Appendix IV). The committee also decided that the time had come to examine a preliminary draft opinion at one of its next meetings.
5. Three reasons enable this memorandum to be kept unusually short. First, to avoid repetition but also to show the rhythm of events, extracts from the documents referred to above are appended. Secondly, because of the quite exceptionally difficult situation in Albania, the circumstances and criteria against which progress must be judged are spelt out in the text of the draft opinion. Finally, a substantive contribution is being prepared by the Committee on Legal Affairs and Human Rights.
6. This contribution takes the form of a memorandum which already covers — in terms which, broadly speaking, we could endorse — issues of the rule of law and the legal system, separation of powers and independence of the judiciary, the legal order in general (media, penal code and death penalty), human rights and the rights of minorities, the case of former Prime Minister Fatos Nano and the state of prisons. The memorandum is being regularly updated. The latest version was made available to our members, as part of the basis for our decision (document AS/Jur (1995) 3).
7. The role of the Political Affairs Committee is not to develop an independent and probably largely overlapping view of the issues dealt with by the Committee on Legal Affairs and Human Rights. It is, essentially, to assess whether in all the circumstances the time has come to say "yes" to Albania or to continue to postpone a decision.
8. The draft opinion presents the case for saying "yes". It is structured in four parts. In the first part (paragraphs 1 to 8), some of the main features of the history of our relationship with Albania since the historic elections of spring 1991 are recalled. The second part (paragraphs 9 to 12) shows the background against which progress must be assessed and sketches the position of Albania today. The third part (paragraphs 13 and 14) presents a development in Albania's external relations and some considerations on foreign policy which did not figure in the preliminary assessment of last December. Finally, paragraphs 15 and 16 note the "continuing developments in the field of legislation" which inter alia now justify a positive decision — subject to acceptance of the commitments listed in the concluding paragraph.
9. The essential judgment we are required to make is the likelihood, in the coming years, of Albania being able to honour the commitments listed in paragraph 17 of the draft opinion. Are the dynamics of progress — towards pluralist democracy, the rule of law and protection of human rights — sufficient to justify a political judgment to the effect that the level of achievement can be interpreted in the terms required by Articles 3 and 4 of the Council of Europe's Statute?
10. The position of the Committee — reflected in paragraph 16 of the draft opinion — is that there is no reason to give a negative response; and that, moreover, it would be injudicious to continue to delay Albania's accession.
11. In recent years, in seeking to assess the credentials of candidate states, we have had recourse to the concept of vertrauenswürdigkeit. This means reversing the terms of the question in paragraph 9 of this memorandum. The question becomes: has Albania built up an adequate "capital of trust" in its relations with the Council of Europe — and, indeed, with other European and international bodies and with our member states?
12. Last December we did not feel it possible to go beyond the judgment that Albania was "... moving in the direction of ..." a society based on the rule of law. Before taking matters further, we required inter alia "the prior introduction of a penal code and a code of criminal procedure in accordance with Council of Europe standards". These codes are now adopted and will enter into force later this year. At the same time, the Albanian Government has renewed its commitment to programmes of systemic legal reform, with the support of the European Union and the Council of Europe.
13. The European Union (following improvement in Albania's relations with Greece) has also started to implement a $43 million programme of economic aid. The European Bank for Reconstruction and Development (EBRD) is providing credit to upgrade the electricity power grid. Germany is committing 28 million Deutschmarks in a combined loan/grant scheme to reconstruct water supplies. The World Bank (through the International Development Agency) is helping with the re-scheduling of Albania's external debt.
14. A key factor in the decisions of these international bodies is the moderation of Albania's foreign policy. This policy has to be conducted in a geopolitical context rendered highly volatile by sanctions against the Federal Yugoslav Republic (Serbia and Montenegro).
15. One aspect of this context is that almost as many ethnic Albanians live beyond and immediately adjacent to Albania's frontiers as within them (3,2 million). Virtually 2 million (90% of the population) in the formerly autonomous province of Kosovo have been deprived of elementary human rights by the present regime in Belgrade. Daily, they are subjected to provocation and humiliation. In respect of rights to culture and education, tensions have arisen between representatives of the ethnic Albanian community (c. 440 000, 23% of population) and the Government of the Former Yugoslav Republic of Macedonia (FYROM). Fortunately, as already noted, the relationship with Greece has improved: many Albanian families are almost totally reliant on remittances from émigré workers, many illegal (their number, prior to a wave of expulsions in 1994, was thought to have reached 200 000).
16. Despite the high-pitched rhetoric of Balkan politics and the domestic pressures to react in defence of the interests of ethnic Albanians in neighbouring countries, President Berisha and his government have been able to win and keep the confidence of the international institutions whose contributions are essential for Albania's ultimate economic recovery.
17. Albania's economic recovery could be an important stabilising factor in this troubled region of Europe. But private sector funding is equally essential. Prospects for the development of democracy, for an "open society" and political stability in Albania itself are among the factors which influence private investors. The view we take of Albania's "capital of trust" in its relations with the Council of Europe will be a significant signal.
APPENDIX I
Preliminary assessment
of Albania's request for membership1
[Extract]
In the course of their most recent visit (4-7 November 1994), the rapporteurs of the Political Affairs Committee and the Committee on Legal Affairs and Human Rights pursued the discussion of issues raised by the Sub-Committee on Human Rights (3-5 November 1993) and the Bureau's special ad hoc committee (5-7 April 1994). They received assurances at the highest level to the following effect:
7.1. the Orthodox Christian community in Albania will not be deprived in practice of an opportunity to flourish;
7.2. the sentences of the five Albanian citizens of Greek origin condemned by the district court of Tirana on 7 September 1994 will be reviewed in the light of provisions of the new penal code and the new code of criminal procedure (if necessary, by a new law to the same effect as Article 24/3 of the rejected draft constitution);
7.3. without prejudice to the independence of the Albanian judiciary, an international inquiry will be permitted into the charges on which former Prime Minister Fatos Nano is condemned to prison.
APPENDIX II
Letter of 2 February 1995
from the Chairman of the Political Affairs Committee to
the Chairman of the Albanian "special guest" delegation
"As you know, following its meeting in Paris on 2 December 1994, the Political Affairs Committee took note of my preliminary assessment of Albania's request for membership of the Council of Europe (document AS/Pol (1994) 43). I attach a copy of this document, for your convenience.
Following the recent visit of your Minister for Foreign Affairs to Strasbourg (26 January 1995), the letter of President Arbnori to the President of our Assembly (21 January 1995) and a meeting held earlier this week of the rapporteurs of the committees concerned, I should like to let you know of my intention to place the question again on the agenda of the Political Affairs Committee.
I learn with satisfaction that a new penal code was approved by parliament on 27 January and will come into effect on 1 June 1995; also that a code of criminal procedure will probably be approved by parliament this month.
I would however also appreciate having information from you — perhaps in time for our next meeting in London on 14 March — on developments concerning the matters raised in paragraph 7 of the preliminary assessment, together with confirmation of the assurances we received thereon, orally, in Tirana on 7 November 1994.
In particular, it would be helpful to have a statement of official policy (and of the legal basis of policy) in respect of the issue raised in sub-paragraph 7.1."
APPENDIX III
Letter of 13 February 1995
from the Speaker of the Albanian People's Assembly
to the Chairman of the Political Affairs Committee
"Having read your preliminary assessment of the application of Albania to become full member of the Council of Europe, submitted to the Political Affairs Committee, I cannot help expressing my thanks to you for your maturity, wisdom and the high level of knowledge displayed in the assessment of the political, juridical, economic and social situation in Albania.
Furthermore, in it I see your goodwill to help Albania in its right and your ability to find out the truths in the sea of disinformation which surrounds us.
By this, I do not want to say that Albania is glittering in all respects. We are conscious that on the difficult road towards democracy, there are many obstacles and that we have to improve many things. To my opinion, the most important thing is to have a clear goal and a constant, even slow, but sure, progress onwards.
On 27 January, our Parliament passed a new Penal Code taking into account a good part of the recommendations of the Council of Europe. The Parliament has introduced in its agenda the new Code of Penal Procedures, which will be examined by the Legal Commission. On principle, there is no obstacle to the endorsement of this Code, it is merely a question of time and after the floor debate it will be approved in a short time.
As regards paragraph 7 of the preliminary assessment, we have given our assurances and we would like to repeat that:
On the basis of its Fundamental Constitutional Provisions, Albania 'recognises and guarantees the fundamental human rights and freedoms and the rights of the minorities' (Article 4); 'It is a laic state, it respects freedom of religious beliefs and creates the necessary conditions for exercising them' (Article 7).
Also Section X of the new Penal Code provides for: the criminal offence against the freedom of religion, namely:
Article 129
Banning the activity of religious organisations
Banning the activity of religious organisations and creating obstacles for the free exercise of their activity shall be punished with fines or with imprisonment up to three years.
Article 130
Banning religious ceremonies
Banishment, or creation of obstacles to individuals to take part in religious ceremonies and to freely express their religious convictions constitutes a criminal offence and shall be punished with fines or with imprisonment up to one year.
Article 131
Destruction or damaging of religious objects
Destruction or intentional damaging of religious objects, when this has brought about the complete or partial loss of their values, shall be punished with fines or with imprisonment up to three years.
Thus the legal basis of the policy we are following is complete.
We would like to officially declare once again that on the basis of our laws, the Muslim, the Christian Orthodox and the Catholic Community in Albania, as well as any other religious community, will not be denied the possibility to develop in practice.
As to paragraph 7.3, I would like to underline that on 9 August, 1994, I wrote a letter to Pierre Cornillon, Secretary General of the IPU, to this effect:
'Furthermore, in the face of the problems arising from the meetings of the committee stemming from different sources and points of views, I think that it would be better and more suitable that instead of your committee engaging in several meetings about such a question, it had sent Albania an impartial delegation which would collect the necessary information directly and on the spot, and ask the respective organs about data of interest to you and unclarities you may have. Such a thing would help you get full and accurate information and to my opinion, it is easy to realise in practice because we are an open country and do not hide anything'.
Following my invitation, a Mission from the Committee on the Human Rights of the Parliamentarians came to our country, not to conduct international investigations, since we are a sovereign state with an independent judiciary, but to get acquainted with facts from all possible sources, on the spot. We created all the possibilities for them to realise all the desired meetings, but were surprised that this mission did not find the time to meet the Chairman of the Tirana District Court, Mr Agim Bendo, the Chairman of the Court of Appeal, Mr Prele Martini, or the Deputy-Chairman of the Cassation Court (The Chairman being in the United States of America then) in order to talk to them and examine the relevant documents which would help the Committee to form an independent opinion.
Thanking you once again for your contribution, as well as the other rapporteurs, I remain in the hope that soon Albania will have the place it deserves in the Council of Europe."
APPENDIX IV
Proposal (14 March 1995) for updating and revising
the "Preliminary assessment" issued by the committee on 2 December 1994
[Extract]
The committee approved the distribution of a "preliminary assessment" of Albania's request on 2 December 1994. A number of developments since December 1994 would appear to justify the updating and re-issuing of this "assessment":
i. resumption of political dialogue between the Albanian Government and the Committee of Ministers of the Council of Europe (26 January 1995);
ii. the adoption by the Albanian Parliament of a penal code on 27 January 1995;
iii. the conditional release, on decision by the Albanian Court of Appeal 8 February 1995, of four members of the OMONIA movement, the fifth having been freed 24 December 1994 by virtue of a presidential pardon (see paragraph 7, sub-paragraph 7.2. below);
iv. assurances from the Albanian Government and Parliament (letter of 13 February 1995 from the President of the Albanian Parliament to the Chairman of the Political Affairs Committee, and exchanges with the Albanian Minister for Foreign Affairs in Strasbourg, 26 January 1995);
a. on progress in the parliamentary examination of a draft code of criminal procedure, in the light of prior consultation with Council of Europe experts;
b. on the legal basis of official policy towards minorities in Albania, notably the Orthodox Christian community;
c. on review of the sentencing of former Prime Minister Fatos Nano in the light of the new penal code (taking effect from 1 June 1995), and further to Albania's acceptance of the mission of the Inter-Parliamentary Union's Committee on the Human Rights of Parliamentarians (Tirana and Tepelena prison, 19-22 December 1994).
Reporting committee: Political Affairs Committee.
Committees for opinion: Committee on Legal Affairs and Human Rights and Committee on Relations with European Non-Member Countries.
Budgetary implications for the Assembly: to be assessed by the Committee on the Budget and the Intergovernmental Work Programme.
Reference to committee: Doc. 6638 and Reference No. 1794 of 30 June 1992.
Draft opinion unanimously adopted by the committee on 27 April 1995.
Members of the committee: Mr Kelchtermans (Chairman), Lord Finsberg (Vice-Chairman), MM. Bársony (Vice-Chairman) (Alternate: Jeszensky), Ala-Nissilä (Alternate: Elo), Álvarez-Cascos, Antretter, Mrs Baarveld-Schlaman, Mr Baumel, Mrs Belohorská, MM. Bergqvist, Bernardini, Björn Bjarnason, Björck, Bloetzer, Bokov, Büchel, Bühler (Alternate: Mrs Fischer), Cerqueda Pascuet (Alternate: Torres Alis), Eörsi, Fassino, Galanos (Alternate: Christodoulides), Gjellerod, Gotzev, Gricius, Güner, Hardy, Irmer, Iwinski, Kalus, Kaspereit, Kelam, Kirsteins (Alternate: Jurkans), La Loggia, Mrs Lentz-Cornette, MM. van der Linden, Machete, Martins, Masseret, Mimaroǧlu, Mitchell, Muehlemann, Pahor, Mrs Papandreou (Alternate: Mr Kapsis), MM. Pavlidis, Pozzo, de Puig, Radulescu Botica, Schieder, Schwimmer, Seeuws, Severin, Sir Dudley Smith, Mr Špaček, Mrs Suchocka, MM. Thoresen, Vella.
N.B. The names of those members who took part in the meeting are printed in italics.
Secretaries to the committee: Mr Hartland, Mr Kleijssen and Ms Chatzivassiliou.
1 1Taken note of by the committee at its meeting in Paris, 2 December 1994.