27 June 1995       Doc. 7338

1403-27/6/95-9-E

OPINION

on the application by Albania for membership

of the Council of Europe

(Rapporteur: Mr COLUMBERG,

Switzerland, Group of the European People's Party)


I. Introduction

1.       Albania submitted its application for membership to the Council of Europe three years ago. During this period there were numerous contacts between the Council of Europe and the Albanian authorities at different levels. Most important, for the Committee on Legal Affairs and Human Rights, was the traditional visit of the Sub-Committee on Human Rights to Tirana on 4 and 5 November 1993, the visit of the Bureau's Ad hoc Committee on Albania from 5 to 7 April 1994, as well as several joint visits of the rapporteurs, the latest on 20 and 21 December 1994. I took part in all of these visits. In the following evaluation of Albania's readiness to join the Council of Europe from a legal point of view, I will base myself mainly on the findings of these visits, as well as on the (laudable) work of the Council of Europe task force Albania and its legal experts, and on my own subsequent studies of legal texts.

2.       I would like to emphasise that during my visits the Albanian authorities at all levels showed willingness to provide me with extensive information, and I received some very valuable and important material. Everywhere, I noted the same determination to be integrated into Europe and to join the Council of Europe as soon as possible.

3.       When appraising the situation in Albania we should at all costs take account of the country's extremely difficult starting position. Allow me to underline this point: following the collapse of the totalitarian system the country was in a state of economic, social and financial ruin. There was absolutely no democratic or legal tradition. Since the change, considerable progress has been made, especially in the legislative field. Constant reference is made to the radical change in Albania; it is true that for forty-five years Albania was the most closed country in the communist bloc and had one of the harshest systems of political repression.

4.       This is reflected, for instance, in the preamble to the Law on Fundamental Freedoms and Human Rights, which refers to the "brutal and extremely inhuman dictatorship of the Party State which lasted for forty-six years ... during which time civil, political, economic, social and cultural rights and the most fundamental freedoms of the individual were violated and negated through institutionalised terror".

5.       This is not to say that there are no problems in present-day Albania. Some problems, legal ones included, do persist. My subsequent evaluation should be taken as constructive criticism of the existing situation, and as an encouragement for the future. I am convinced that the Albanian authorities have every willingness to comply with Council of Europe standards, and will work towards them on the basis of this evaluation. The amendments which I propose have the twofold aim of making sure that the Albanian authorities will continue to "go in the right direction", and of ensuring that the same standards are applied to every applicant country. Some of the more technical amendments have the latter as their aim, since I am also co-rapporteur of this committee on Moldova's accession to the Council of Europe, and can thus very well compare the two draft opinions.

II. The overall situation

6.       Since the 1992 elections by direct universal suffrage Albania has been a pluralistic democracy for which President Berisha has set two objectives: the rule of law and the market economy.

7.       Land ownership and small enterprises are currently being privatised. On the other hand, heavy industry has not yet been privatised. However, the privatisation of land ownership has made great progress: during my visits, I saw that almost all the fields were being cultivated (which had not been the case previously).

8.       As regards the development of pluralistic democracy, the replies received in June 1994 to the questionnaire drawn up by the rapporteurs1, from the Albanian Government, the Republican Party, the Socialist Party and the "Union for Human Rights" Party vary widely. Appraisal of the situation apparently depends on political affiliation; the replies show that there is a considerable polarisation in the country. The following points are still particularly controversial: progress on the constitution, the legal system and its application (the Nano case), the situation of ethnic minorities and the freedom of the press.

9.       After the referendum on the new draft constitution, which the people rejected, political confrontation in the country became more serious. The pace of legal and economic reform has slackened, because the government has to some extent lost the people's confidence. Its credibility and authority have also been undermined by its support for the draft constitution. Even within the government and the Democratic Party, one increasingly finds that opinions differ, and this hampers efficiency. The opposition is using this opportunity to criticise the government and is trying to force the holding of new general elections.

10.       For these reasons, the general political, legal and economic situation in Albania remains tense and even alarming. We must watch these tensions closely in order to ensure that pluralist democracy and the legal and economic reforms are maintained.

III. The rule of law and the legal system

A.       The constitution

11.       In any state governed by the rule of law, the constitution is the basis of the whole legal order. This is why we requested that the new constitution be adopted and implemented as soon as possible. A draft constitution was prepared by a committee chaired by the Prime Minister. It was criticised for a number of reasons. Firstly, it gave the President of the Republic much greater powers, including power to appoint cabinet ministers and judges and lift parliamentary immunity. Secondly, it stipulated that all leaders of religious groups in Albania must have been born there, must have lived there for at least twenty years, and must have Albanian nationality (Article 7). This provision would have affected the Greek minority in Albania, as its Greek metropolitan would not have satisfied these criteria.

12.       On 4 October 1994 the President of the Republic, Mr Berisha, appeared on television to propose a referendum on the constitution. On 10 October parliament agreed to the referendum, with the opposition parties voting against. The date was fixed for 6 November 1994. The Socialist Party maintained that this referendum was unconstitutional because the draft constitution had not gained the prior approval of parliament. The Constitutional Court subsequently upheld the referendum's lawfulness.

13.       The referendum was held on 6 November 1994, and I observed it with the other rapporteurs. 84,3% of registered voters took part, with 53% voting against the new draft constitution and 41% for. The reason for rejection of the draft was apparently not the text itself (the public had not even discussed it in depth); it was rather a rejection of the whole situation in the country at the time.

14.       The Democratic Party wanted to revive the former parliamentary commission to prepare a new text, but the Socialist Party rejected this proposal, as well as a proposal to create a new parliamentary commission (with five government and five opposition representatives). The opposition insists that the procedure for adoption of the constitution must be clarified before any new parliamentary commission is set up. It is also demanding fresh elections. The result is complete deadlock in the revision of the constitution. Nevertheless, we should note that several constitutional requirements are already in force, being incorporated in framework constitutional laws. Thus Albania is not in a constitutional vacuum.

B.       Separation of powers and independence of the judiciary

15.       The separation of powers, which is a requisite for a state based on the rule of law, is provided for by statute (Article 3 of the Constitutional Law). However, other legal provisions lay down that "the administration of justice shall fall under the jurisdiction of the Ministry of Justice"; and, furthermore, the Minister for Justice "in particular cases, may charge a judge of the district court or of the military courts to adjudicate in another

district or military court ...". There is also the Higher Council of the Judiciary, composed of thirteen members and chaired by the President of the Republic, which holds authority over not only judges but also public prosecutors. While these provisions could cast doubts on the independence of the judiciary, a new criminal code and code of criminal procedure will come into force soon.

16.       The Criminal Code was adopted by parliament on 27 January 1995 and will enter into force on 1 June 1995; the Code of Criminal Procedure was adopted on 20 March 1995 and is scheduled to enter into force on 1 August 1995.

17.       The Code of Criminal Procedure seems in general to insure the independence and impartiality of the judiciary in a way legislation currently in force does not. It provides, for example, for the automatic exclusion of a judge who has rendered any decisions in a prior stage of the proceedings from the trial, and gives exact rules on the incompatibility, renouncement and challenge of a judge. However, the distribution of power between the judiciary and the prosecutor's office, is — like in many other post-communist countries — not always completely clear. From reading the final draft of the Code of Criminal Procedure one can get the impression that in certain areas (for example, as far as issuing arrest warrants, or searching for evidence is concerned) the prosecutor is given powers similar to that of the judge.

18.       Secondary legislation on the public prosecutor's office, in the elaboration of which Council of Europe experts are due to be involved through the "Demo-droit" programme, should clarify this problem. The prosecutor's office, in Albania as in other applicant states, must be transformed into a body compatible with the rule of law and the principle of separation of powers. This I consider a necessary obligation for Albania to fulfil in the near future. I find it most regrettable that Mr Arbnori, the Speaker of the Albanian Parliament, is reluctant to sign such a commitment. I am afraid I will have to demand it anyway.

19.       However, the most serious problem involving the judiciary is the shortage of lawyers and the lack of democratic legal traditions. The old regime had no Ministry of Justice, and the profession of lawyer had been prohibited since 1967. In order to offset the lack of qualified staff, judges had to be trained within six months. The Law on the Judiciary has also not yet been adopted. What is more, the Code on Criminal Procedure is a very sophisticated code modelled on the Italian one. Its practical application will thus require extensive training and education of those engaged in the administration of justice. Here, the Council of Europe should help.

20.       Most recently another serious problem has surfaced: There seem to be certain tendencies in Albania undermining the independence of the judiciary. I raised these questions with the Speaker of the Albanian Parliament, Mr Arbnori (see Appendices II-V). In particular, I was worried about a draft law which had been introduced in the Albanian parliament, which could have resulted in the (from my point of view quite unacceptable) removal from office of several judges of the Cassation Court, including the Vice-President. I was very glad to hear from Mr Arbnori that this draft law had been withdrawn from the order of business of the Albanian Parliament, and that the matter can thus be considered closed.

21.       However, unfortunately Mr Arbnori was unable to enlighten me in more detail about the alleged summary dismissal of a number of judges and court personnel on the local level, so that I am afraid I must doubt that the proper procedure governing the dismissal of judges was observed. I am also not entirely satisfied the Albanian Parliament has adopted a law transferring budgetary power from the courts to the Ministry of Justice. While the arrangement in itself is similar to that in some other Council of Europe member states, it is a step back from the previous legal situation in Albania and thus confirms my impression that the development regarding the independence of the judiciary is going in the wrong direction.

22.       I am especially preoccupied by the fact that, in view of these difficulties, the Speaker of the Albanian Parliament has asked me to exclude a proposed additional amendment regarding the undertaking to protect the independence of the Albanian judiciary against any interference. Much as I would like to oblige, I cannot exclude this amendment, since there seems no other way for me to put pressure on the Albanian authorities not to let the negative tendencies regarding the independence of the judiciary to continue.

C.       The legal order in general

23.       The development of the rule of law is rather complicated: even though 300 laws have been adopted by the new parliament, the implementation of the legal reform is very slow. As already mentioned above, the Criminal Code and the Code of Criminal Procedure have already been adopted, as has the Civil Code. I have been assured that the Code on Civil Procedure will soon be finalised.

24.       Legislation on the press, which had led to strike action, had just been adopted when the sub-committee visited Albania in 1993. However, all journalists, at the time, accepted that the press was free. The problem is apparently that the lack of training for journalists is leading to abuses and unethical behaviour. This problem arises in most countries where freedom of the press is restored after a long period of censorship. Legislation on the matter would probably help overcome this problem. According to the opposition parties' replies to the questionnaire prepared by the three rapporteurs, freedom of the press is no longer absolutely guaranteed: journalists working with the independent press, the opposition press and the foreign press have been ill-treated, a number of journalists have been prosecuted, and there have also been convictions. This is a disturbing situation. However, several journalists were released under the amnesty declared by President Berisha on 25 November 1994.

25.       I have also most recently received rather disturbing reports according to which a kind of "pre-publishing censorship" does exist on the level of printing houses. According to these allegations, the printing house gives copies of newspapers and magazines to the secret police before publishing them. At least in one case the secret police seems subsequently to have intervened to prevent publication. I had no opportunity to check the truth of this allegation due to shortage of time, but if it were true it would be a worrying development indeed.

D.       The abolition of the death penalty

26.       The number of crimes punishable by death had first decreased from thirty-three to thirteen, and it is currently restricted to seven cases. Unfortunately, the new Criminal Code which will come into effect on 1 June this year again multiplies the number of crimes punishable by death. According to the amended version of the draft code available to me, the following eight crimes now carry the death penalty (although in no case is the death penalty mandatory): certain aggravated forms of murder (including murder related to — any — other crime), kidnapping (including swapping or hiding a child), robbery resulting in death, terrorism, surrendering territory, surrendering the army, attempted murder, kidnapping or torture of state dignitaries and organising an insurrection. In the chapter on crimes against mankind, capital punishment is also provided for "murder, extermination, restitution to slavery, internment, banishment, as well as any kind of torture, or any form of other inhuman violence committed for political, ideological, racial, ethnic or religious motives" (an additional five cases). The same chapter foresees the death penalty for genocide (which covers five separate crimes, of which three are new ones: "inflicting serious physical and psychological harm, ..., imposing measures to prevent childbirth or forcibly transferring children of the group to another group"). In the chapter on war crimes, acts committed in times of war "like murder, maltreatment, or internment to enslaving work, and any kind of other inhuman exploitation to the detriment of the civil population, or in occupied territory, the killing of hostages, destruction of private or public property, destruction of cities, communes, or villages, not dictated by military needs" also carry the death penalty (an additional six cases).

27.       This means, in effect, that the new Albanian Criminal Code provides for the death penalty in twenty-two cases. While this might constitute an amelioration in relation to the first draft of the Criminal Code, which provided for the death penalty in more than 100 (!) cases through the infamous Article 333 (penal offences committed by armed bands or criminal organisations), it is unacceptable to provide for the death penalty for such crimes as kidnapping, destruction of private or public property, etc., even in case of war.

28.       What is worse, there are no official plans to abolish capital punishment, although such movements do exist in the Albanian parliament. In 1992 fourteen people were condemned to death, and seven in 1993. Ten executions actually took place, the other eleven prisoners having been pardoned by the President of the Republic. In 1994, seven people were condemned to death, of which five were executed and two pardoned. In 1995 so far three death sentences have been pronounced, of which two have been changed to a lesser penalty. One of the arguments put forward against abolishing the death penalty is the "vendetta" phenomenon, though other major reasons quoted are the cultural backwardness of society, conflicts arising out of the restoration of private ownership and the economic difficulties of the transition phase.

29.       In accordance with Resolution 1044 (1994) on the abolition of capital punishment, "the willingness to ratify the [Sixth] protocol [to the ECHR should] be made a prerequisite for membership of the Council of Europe". There are numerous arguments against capital punishment which I do not want to go into here. However, it should be mentioned that, although some "old" member states have also not yet ratified Protocol No. 6, none of them have executed anybody in recent years, and most of them do not even have anybody under sentence of death. It should also be noted that the legal system of these countries is more mature and gives greater guarantees against the execution of innocent people. In any case, as I have also argued in the opinion on Moldova's accession which I was co-author of, the Assembly should uphold its own decisions.

30.       Thus, although I can understand the deeply-rooted feeling among Albanians that the death penalty is necessary, I must ask the Albanian authorities to abolish the death penalty, at least in peacetime. I therefore make the ratification of Protocol No. 6 of the ECHR a binding commitment for the Albanian authorities and propose an appropriate amendment. In view of the special problems facing Albania, which are mainly cultural and traditional, I think that the Assembly should allow it three years (instead of one) to sign and ratify Protocol No. 6, abolishing capital punishment in peacetime, provided that a moratorium on executions is put into place until the complete abolition of the death penalty. A similar amendment is proposed in the case of Moldova.

31.       I am very glad that the Albanian authorities are willing to subscribe to the commitment, as was expressed in the letter dated 23 June 1995 from the Speaker of the Albanian Parliament.

E.       Case of Mr Fatos Nano

32.       The sub-committee was allowed to talk to Mr Fatos Nano, who had been Prime Minister from February to June 1991, in the presence of his lawyer and prison staff. He is accused of abuse of authority and forgery of official documents relating to aid from the Italian state. According to Mr Nano, the offences of which he is accused are not punishable by imprisonment; he was arrested without parliamentary authorisation. He contended that parliament should have held two votes — one to remove his parliamentary immunity, the other to authorise his imprisonment. The procedure had not been respected, he claimed, because the law lays down that the accused must be brought before a court within two months, which had not been the case. Mr Nano's view is that he is a political prisoner regarded as a danger to society. According to the Albanian authorities, Mr Nano was lawfully held in custody on remand like any other accused.

33.       Mr Nano was apparently notified of the indictment on 9 October 1993. After the investigatory proceedings, which ended on 14 February 1994, the trial began on 5 March 1994. On 3 April 1994 Mr Nano was sentenced to twelve years' imprisonment for embezzlement on behalf of a third person and forgery of documents. On 26 May 1994 the Court of Appeal confirmed this judgment and on 28 July 1994 the Court of Cassation, the third and last level of the Albanian judicial system, upheld the decisions of the first two levels. However, his prison sentence has been reduced to five years by now.

34.       The case was submitted to the Inter-Parliamentary Council (of the Inter-Parliamentary Union) (Case No. AL/01 — Fatos Nano — Albania), which adopted a resolution thereupon at its 92nd Conference in Copenhagen, from 12 to 17 September 1994. In this resolution the Council "fails to understand how the acts or omissions of Mr Nano, referred to in the Tirana District Court judgment, can prove Mr Nano's guilt, and expresses doubt as to the rational nature of the aforesaid judgment" and "expresses serious concern at the allegation of partiality of the court (...)". The Council requested the Committee on Human Rights of Parliamentarians to continue examining the case and to report to it at its next session in March 1995. A delegation from the committee visited Albania just before Christmas 1994, and its report was presented at the IPU's session in Madrid in March-April 1995.

35.       I found the report of the Committee on the Human Rights of Parliamentarians most professional and enlightening, and I agree with its conclusions and recommendations. In the draft resolution, the committee, inter alia, "takes note of the adoption of a new Penal Code and a new Code of Penal Procedure maintaining the right to revision of a trial under certain circumstances, and notes with satisfaction that, according to the leader of the Albanian IPU delegation, Mr Nano's case may come under that provision", and "urges the Albanian authorities to give the most serious consideration to the committee's recommendation that Mr Nano's trial be reviewed".

36.       I am still worried about the Nano case, particularly since, even after Albania's ratification of the European Convention on Human Rights, Mr Nano will be unable to apply to Strasbourg if Albania does not accept the retroactive application of this ratification (which is likely). One solution to the problem would be a presidential pardon, provided Mr Nano is not subsequently barred from participating in the political life of the country, the other a reviewal of the trial as suggested by the Committee on the Human Rights of Parliamentarians under the new Codes. Whichever way is chosen, I consider it an obligation for the Albanian authorities to solve Mr Nano's case. I will introduce an amendment to this effect.

37.       In his letter dated 23 June 1995, the Speaker of the Albanian Parliament informed me that "if the Nano case will be envisaged to be revised by the new Code of Criminal Procedure and the other codes that have recently entered into force, his case will be revised just as the case of any other Albanian citizen may be". It has come to my attention through newspaper reports of 21 June 1995, that a revision of Mr Nano's case according the new Criminal Code has already taken place, and that his sentence was upheld. I thus must insist on a solution to his case along the lines of the previous paragraph. Mr Arbnori's conclusion, that he considers the inclusion of this amendment (Amendment No. 6) in paragraph 17 as "not acceptable and not beneficial to the judiciary" thus is unfortunately totally unacceptable for me, and I must insist on my amendment.

38.       I have most recently received information from Amnesty International that they have adopted the son of Enver Hoxha, Ilir Hoxha, as a prisoner of conscience. He has been condemned to one year in prison in first instance for giving an interview to a small-circulation newspaper in which he praised his father and criticised Albania's present government. (He did not advocate violence.) I find it unacceptable that the freedom of speech is thus not fully guaranteed in present-day Albania, and I fear that I will have to insist on a satisfactory solution to Mr Ilir Hoxha's case, too.

IV. Human rights, including the rights of minorities

39.       Human rights are secured under the Law on Fundamental Freedoms and Human Rights, of 31 March 1993. Section 26 of the law also protects the rights of minorities. Representatives of the Albanian branch of Helsinki Watch stated that human rights were being respected. Representatives of the Greek minority mentioned a number of problems: they acknowledged that they had all the rights applicable to Albanian citizens, but they also considered that they had problems as a minority. They complained that they had no dialogue with the government. The problems concerned the number of persons belonging to the minority, varying between 60 000 according to the Albanian authorities and 200 000 according to its representatives, who were calling for a census. They were also demanding recognition as a minority in non-minority areas; they claimed that schools teaching in the Greek language had been closed down and that it was difficult for individuals belonging to the minority to obtain posts in the civil service and the army.

40.       The representatives of the Catholic, Orthodox and Muslim communities stressed that the country had always had a tradition of religious tolerance, and they expressed the hope that outside intervention would not affect this climate. The only problems they mentioned concerned the restitution of property.

41.       I am satisfied that the relations between the Albanian authorities and the minorities living in the country will improve if the Council of Europe Framework Convention on the Rights of Minorities is ratified, and the principles laid down in the Assembly's own Recommendation 1201 (1993) are implemented, as the Rapporteur of the Political Affairs Committee, Mr Kelchtermanns, has already stipulated in his draft opinion.

V. Relations between Albania and Greece

42.       The deterioration in relations between the two countries (August-September 1994) was linked to the prosecution of five members of the Greek minority, which Greece considered as a political trial which was unfounded and detrimental to the whole Greek minority. Five members of the Greek minority were arrested, accused of collaboration with the Greek Secret Services and illegal possession of weapons, and sentenced to between six and nine years' imprisonment. The court of appeal reduced these sentences to five and seven years respectively. Greece reacted against the alleged violations of the human rights of the Greek minority in Albania with the mass expulsion from Greece of illegal Albanian immigrants. At its session in Strasbourg in September 1994 the European Parliament appealed to the Albanian Government to release the prisoners. Moreover, a number of non-governmental organisations expressed their concern about the treatment of legal and illegal immigrants by Greece.

43.       There were also other incidents emanating from the Greeks: for example, the violation of Albanian air space by a Greek helicopter — without the authorisation of the Greek authorities — which dropped leaflets bearing the Greek flag and inciting the population to rise up against the established order in Albania. In a further incident, Albanian border soldiers were brutally murdered by unknown persons who had crossed the border.

44.       At the end of 1994, relations between the two countries improved. For instance, Greece released the funds which the European Union had earmarked for the country, and the Albanian Government pledged itself to find a fair solution in the trial of the five members of the Greek minority. This solution has now been found: the Court of Cassation considered the case on 8 February 1995 and released the prisoners. This is a very encouraging development. It is to be hoped that this improvement in relations will continue.

VI. Prison system and police custody

45.       Conditions in prisons have improved. The officials responsible are prepared to take further measures, but financial resources remain limited. The Council of Europe is providing essential assistance to the Albanian authorities in this field, and should go on doing so.

46.       Responsibility for running the eight "rehabilitation units", as prisons are now called, was transferred from the Ministry of Public Order to the Ministry of Justice on 1 November 1993. The transfer has been virtually completed also in practice (not just on paper). Prisoners are no longer tortured or subjected to physical violence. Eighty per cent of the staff have been replaced. Conditions of detention have been improved, although they are of course dependent on the general economic and cultural situation. Former political prisoners have been released and even compensated.

47.       Amnesty International has just published a disturbing report on police ill-treatment and deaths in custody (AI Index: EUR 11/04/95). According to this report, Amnesty International has received over 100 reports of incidents in which members of the Albanian police forces are alleged to have beaten, kicked or otherwise ill-treated people during arrest and detention. Many of these alleged violations seem to have been directed against members or supporters of the Socialist Party, but other victims seem to have been protesting former political prisoners, villagers, workers, members of the Greek minority and homosexuals. Amnesty International documents, inter alia, three cases of police ill-treatment leading to the death of the victim. Again I have not had sufficient time to verify these allegations, but Amnesty International is a serious organisation which is generally to be believed. If the allegations are true, they would constitute a grave and unacceptable violation of human rights.

VII. Conclusions

48.       Albania has made considerable progress and is obviously determined to join the Council of Europe. Above all, it has engaged in fruitful co-operation with the Council of Europe, for example, in preparing new legislation. The remaining urgent problems are mainly of a legal and political nature. Unfortunately some very important problems do remain.

49.       The Council of Europe should increase its aid to Albania, with a special emphasis on training for lawyers, the reform of the prosecutor's office, the drafting of legislation and improvement of the prison system.

50.       When appraising the situation in Albania we should at all costs take account of the country's extremely difficult starting position (totalitarian system, economic ruin, no democratic or legal tradition). We must also take account of the general situation in the Balkans: Albania must remain stable in order to ensure security in the region. Despite the extreme political polarisation in the country, all the Albanian authorities have demonstrated European goodwill and a desire for accession to the Council of Europe, either to stabilise the regime or to safeguard human rights. Where violations of the rights secured under the European Convention on Human Rights are concerned, they have declared themselves in favour of every citizen having the right of individual petition to the organs of the Convention.

51.       At the time of accession Albania should sign the European Convention on Human Rights and its Additional Protocols Nos. 1, 2, 4, 6, 7 and 11. Albania should undertake to base its policy on the protection of minorities on the principles set out in Recommendation 1201 (1993) on an additional protocol to the European Convention on Human Rights on the rights of national minorities. Albania should commit itself to co-operate in the implementation of Order No. 508 (1995) and to endeavour to settle international disputes by peaceful means as one of the obligations incumbent on all member states of the Council of Europe.

52.       After accession, Albania should ratify (normally within a period of one year) all the aforementioned instruments, recognise the right of individual petition to the European Commission of Human Rights (Article 25 of the Convention), as well as the compulsory jurisdiction of the European Court of Human Rights (Article 46), ratify the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the General Agreement on Privileges and Immunities and its Additional Protocol. A solution to the problem of the constitution should also be found in the next few years, and Protocol No. 6 should be ratified within three years.

53.       Even taking into account Albania's most difficult starting position and the amount of real progress Albania has made so far, I am most disheartened by recent developments. The remaining problems — unwillingness to make a commitment to reform the prosecutor's office, or to guarantee the independence of the judiciary or a satisfactory solution to the Nano case, allegations of censorship, of police brutality and of imprisonment because of political views — are unexpectedly grave and numerous. I have made every effort in the last four weeks to find out the truth about these allegations, and I entered into correspondence with Albania's speaker of parliament to this end. The responses I received cannot, I think, be called satisfactory.

54.       In view of these facts I cannot take it upon my conscience to support the recommendation of the Political Affairs Committee to invite Albania to become a member of the Council of Europe now. I will thus propose reference back to committee at the end of the debate in the Plenary on Thursday morning, to give me some more time to clarify the outstanding issues and to get clear commitments in writing from the Albanian authorities.

55.       Should my suggestion not be followed, I would propose the adoption of the following amendments as the second-best alternative.

VIII. Suggested amendments

56.       I would like to ask the Assembly to vote for the following amendments to the draft opinion on Albania's request for membership contained in Doc. 7304, to be tabled on behalf of the Committee on Legal Affairs and Human Rights:

Amendment No. 1: (accepted by the Albanian authorities)

      In paragraph 17 add between "on the understanding that Albania" and "intends" the following phrase:

      "shares its interpretation of commitments entered into as spelt out in paragraphs 13 and 16, and now".

Amendment No. 2: (accepted by the Albanian authorities)

      In paragraph 17, replace sub-paragraph b with the following sub-paragraph:

      "to sign, ratify and apply Protocol No. 6 of the European Convention on Human Rights on the abolition of the death penalty in time of peace within three years of accession, and to put into place a moratorium on executions until total abolition of capital punishment;".

Amendment No. 3: (accepted by the Albanian authorities)

      In paragraph 17, add "within a year from the time of accession" after "sign and ratify" in sub-paragraphs c, d and i.

Amendment No. 4: (not accepted by the Albanian authorities)

      Add as a new sub-paragraph to paragraph 17, between sub-paragraphs d and e:

      "to change the role and functions of the Prosecutor's Office, transforming this institution into a body which is in accordance with the rule of law and Council of Europe standards;".

Amendment No. 5: (accepted by the Albanian authorities)

      Add as a second new sub-paragraph to paragraph 17, between sub-paragraph d and e:

      "to find, within a reasonable length of time, a solution to the problem of the constitution in accordance with Council of Europe standards;".

Amendment No. 6: (not accepted by the Albanian authorities)

      Add as a third new sub-paragraph to paragraph 17, between sub-paragraph d and e:

      "to find a satisfactory solution to the case of Mr Fatos Nano, along the lines of the recommendations of the Committee on the Human Rights of Parliamentarians of the Inter-Parliamentary Council, or through a presidential pardon not subsequently barring Mr Nano from participating in the political life of the country;".

Amendment No. 7: (accepted by the Albanian authorities)

      In paragraph 17, sub-paragraph f replace "No. 488 (1993) 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" with

      "No. 508 (1995) on the honouring of obligations and commitments by member states of the Council of Europe".

Amendment No. 8: (accepted by the Albanian authorities)

      In paragraph 17, sub-paragraph h, add at the end of the sentence:

      "notably those on extradition, on mutual assistance in criminal matters, on the transfer of sentenced persons, and on laundering, search, seizure and confiscation of proceeds from crime;".

Amendment No. 9: (not accepted by the Albanian authorities)

      Add as a fourth new sub-paragraph to paragraph 17, between sub-paragraph iv. and v.:

      "to ensure the independence of the judiciary, in particular by protecting judges from unjustified or arbitrary dismissals and by keeping the operating budgets of the courts under their direct and full control;"

IX. Recommendation

      I recommend reference back to committee at the end of the debate in the Plenary Assembly.

APPENDIX I

Brief background

January 1946

      Proclamation of the People's Republic of Albania. Totalitarian rule by Enver Hoxha begins.

11 December 1990

      The Communist Party accepts the creation of other political formations to present candidates at the legislative elections on 10 February 1991: the beginning of the peaceful change of regime in Albania.

March/April 1991

      The first free elections observed by a delegation of observers from the Parliamentary Assembly of the Council of Europe. Conclusions: "these elections, while not totally fair, particularly during the election campaign, can be considered free and democratic, especially if compared to the 1987 elections in which, out of 1,8 million voters, the single party obtained 100% of the votes (only one vote against)".

      After the second round the observer delegation expressed the hope "that the process of liberalisation and democratisation in Albania, as repeatedly claimed by the authorities, is irreversible". The observers went on to say, "One test will the authorities' response to representations being made to them internationally concerning the shootings in Skodra. A further test will be genuine consultation of opposition members in the new Assembly on the new constitution. Objectively, there is every incentive for the ruling party in Albania to seek an arrangement with the opposition. Indeed, the Labour Party leadership is pressing the Democratic Party to enter into a coalition government. But there are other, prior forms of accommodation which need to be reached before the new Assembly can function in a genuinely pluralistic manner. Contacts between Albania and the Council of Europe should be further encouraged".

25 November 1991

      Albania obtained special guest status with the Assembly.

April 1992

      Further general elections were held, as a result of which a single-chamber parliament was formed with 140 members, 92 of whom belong to the Democratic Party and 38 to the Socialist (ex-communist) Party; the Greek minority has two representatives. These elections were also monitored and the delegation reached the conclusion that the elections were properly conducted, adding that the matter of fair provisions for the Greek-speaking minority is one which the Council of Europe should continue to scrutinise.

9 April 1992

      President Berisha is elected.

4 May 1992

      Albania submitted its application for membership to the Council of Europe.

6 May 1992

      President Berisha addressed the Parliamentary Assembly of the Council of Europe in Strasbourg.

18 to 20 June 1993

      The two lawyers mandated by the Assembly, Mr Loucaides and Mr Makarczyck, visited Albania.

3 November 1993

      The lawyers' report was examined by the Bureau of the Assembly, which decided to append it to its progress report, thus making it public (AS/Bur/Albania (44) 1).

3 to 5 November 1993

      The Sub-Committee on Human Rights visited Tirana.

5 to 7 April 1994

      The Ad hoc Committee on Albania (Chairman: Lord Finsberg, members: Mr Columberg, Mr Kelchtermanns, Mr Pfuhl and Mr Reddemann) held a meeting in Tirana and met, inter alia, the President of the Parliament, Mr Pjeter Arbnori, representatives of the political parties, President Berisha and several Ministers.

26 April 1994

      Lord Finsberg, Chairman of the ad hoc committee, sent a questionnaire drawn up by the rapporteurs on Albania's application for membership of the Council of Europe to Mr Meksi, Prime Minister, Mr Arbnori, President of the Albanian People's Assembly, and six political parties.

June 1994

      The replies to the rapporteurs' questionnaire were received from the Albanian Government, the Republican Party, the Socialist Party and the "Union for Human Rights" Party.

24 and 25 August 1994

      The Chairman of the Committee of Ministers of the Council of Europe, Mr Daskalov, and the Secretary General, Mr Tarschys, visited Albania and met, inter alia, representatives of the political parties, the Prime Minister, Mr Meksi, the CSCE High Commissioner for National Minorities, Mr van der Stoel, the President of the Parliament, Mr Arbnori and the President of the Republic, Mr Berisha.

4 October 1994

      The President of the Republic, Mr Berisha, announced a referendum on the draft constitution.

6 November 1994

      A referendum was held on the new draft constitution. 84,3% of the electorate participated, with 53% voting against and 41% in favour. The rapporteurs of the three Assembly committees, MM. Kelchtermanns, Pfuhl and Columberg, observed the referendum on the spot.

20 to 21 December 1994

      Mr Pfuhl and Mr Columberg, rapporteurs, visited Albania.

27 January 1995

      The Albanian Parliament adopted a new criminal code, which will come into force on 1 June 1995.

20 March 1995

      The Albanian Parliament adopted the Code of Criminal Procedure, which is scheduled to enter into force on 1 August 1995.

APPENDIX II

Letter of 31 May 1995 from Mr Columberg

to Mr Arbnori, Speaker of the Albanian Parliament


      ...

      Over the past few years, in the course of the examination of your country's request for membership of the Council of Europe, I have several times had the opportunity to discuss with you the problems relating to this request. It is with these, always very constructive, meetings in mind that I am writing to you today.

      As you know, the Committee on Legal Affairs and Human Rights has appointed me rapporteur on Albania's request for membership. After carrying out several fact-finding visits to your country, I submitted a draft opinion (copy enclosed) to the committee two days ago in Paris. It expresses my pleasure and great satisfaction to have been able to observe that since 1991 your country has achieved substantial progress on the road to democracy, the rule of law and human rights. I should like to thank all the authorities concerned for having carried out these important reforms.

      Perhaps Mr Ali Spahia, who attended the meeting in Paris, has already informed you that the committee has not, for the time being, adopted my draft, for the following two reasons:

      Firstly, as far as possible, the committee wishes to treat Albania and Moldova equally. I recently sent the Speaker of the Moldovan Parliament a letter requesting him to give a written endorsement of the undertakings which our committee has drawn up for this country. I received confirmation of this by return of post. I should therefore be grateful if you would consider whether you are able, on your country's behalf, to given written approval of the amendments which you will find on pages 9 and 10 of my report.

      Secondly, the committee is somewhat concerned at certain information which we have recently received from a variety of sources, to the effect that the judicial independence in Albania is in danger of being undermined by recent events and certain planned measures. I am referring here to a number of draft laws which have apparently been tabled in parliament and which could lead to the dismissal of judges from the Court of Cassation (including its Vice-President) and to the transfer to the Ministry of Justice of this court's budget, which it has managed independently until now. Moreover, some ordinary judges and court personnel attached to regional and/or local courts seem to have been summarily dismissed.

      I should be very grateful if you would let me have the real facts. Of course, I should be happy to learn that the information which I have received does not reflect the real state of affairs. Were this not to be the case, I should be very grateful if you would reconsider and if necessary revise the decisions taken or planned, in particular those concerning the judges of the Court of Cassation. In this connection, I presume that you are in agreement with an additional amendment (No. 9) regarding the undertaking to protect the independence of the Albanian judiciary against any interference.

      I very much hope that Albania will, in the near future, be in a position to resolve the problems which are still outstanding and that it will become a member of the Council of Europe. If your reply reaches me before 22 June 1995, there should be no obstacle to our Committee giving a favourable opinion on Albania's membership of the Council of Europe on 27 June in Strasbourg, which should also mean a favourable vote in the plenary Assembly on 29 June 1995.

      I deeply appreciate your great personal commitment to the establishment of democracy and the rule of law and your efforts to promote respect for human rights and look forward to receiving your written reply as soon as possible.

      ...

APPENDIX III

Letter of 19 June 1995 from Mr Arbnori, Speaker of the Albanian Parliament,

to Mr Columberg


      ...

      I have followed with particular interest the care and solicitude you have displayed in writing the report on Albania. Your frequent visits have enabled you to form a clear picture of the situation of the Albanian legislation and human rights in Albania. Your remark about the co-operation which has existed between us gives me special pleasure. Furthermore, I share your opinion that the progress made during the last three years is indeed quite obvious.

      I learnt that the draft has not yet been approved by the committee at its recent meeting in Paris and that there are some concerns on the part of some members of your distinguished committee about the independence of the judiciary in Albania.

      I do not intend to enter into the details of the question of the Cassation Court. However, I deem it reasonable to inform you of the following.

      Proceeding from your observation that the progress made during the last three years is very significant on the road of establishing the rule of law, as well as considering the profound legislative and economic reforms we have undertaken in the conditions of a lamentable legacy we inherited from the past and the very perturbed geo-political situation in the region, I cannot help noticing that there have been and still are things to be improved. Likewise I cannot help appreciating that the stability of Albania and the role it has been playing in the region are of a particular significance.

      As regards the question of the judges of the Cassation Court, without wishing to enter into details, allow me to inform you of the following.

      Various lawyers and parliamentarians have several times raised the question of the curriculum vitae of some members of the Cassation Court as not being in conformity with the requirements of the Main Constitutional Provisions. In reply to the request to devalidate the decision of the Parliament about the nomination of the said judges, we asked the Ministry of Justice and the Cassation Court itself to provide information about this question. On the basis of the relevant explanations and pursuant to Article 6 of the Main Constitutional Provisions, this issue was definitely removed from the order of business of the Albanian Parliament and is thus considered closed. However, it continues to be the object of speculation by the opposition press.

      Furthermore, I consider worth mentioning that never has any request been made for dismissing the judges of the Cassation Court. The only request made has been that of proving that their election has been made in conformity with the main Constitutional Provisions and, if not, to annul the decision.

      Availing myself of this opportunity, I would like to underline once again that I consider the independence of powers, particularly of the judiciary, as sacred, and to assure you, Sir of my highest commitment in this respect.

      Thanking you for your co-operation.

      ...

APPENDIX IV

Letter of 20 June 1995 from Mr Columberg

to Mr Arbnori, Speaker of the Albanian Parliament


      ...

      I received your letter this morning by fax. Let me express my sincere gratitude for your prompt reply.

      I am very glad that the matter of the cassation court judges seems to have been solved in a satisfactory way by definitely removing the item from the order of business of the Albanian Parliament and thus closing it. Your assurance concerning the sacredness of the independence of the judiciary is also highly appreciated.

      However, perhaps you overlooked three small requests I made in the letter I addressed to you on 31 May 1995 (copy attached). The first two are requests for information, firstly concerning the transfer of the budget powers of the Court of Cassation to the Ministry of Justice, and secondly concerning alleged summary dismissals of judges and court personnel on the local level. Thirdly, and perhaps most important, I asked you for your approval of the suggested amendments to be found on page 9 and 10 of my report (copy attached).

      I would be most grateful if you could clarify these three issues in writing by the end of the week.

      ...

APPENDIX V

Letter of 23 June 1995 from Mr Arbnori, Speaker of the Albanian Parliament,

to Mr Columberg


      ...

      In answer to your fax of 20 June 1995, allow me to clarify to you the following problems:

      In a letter I sent some time ago to Mr Kelchtermans, the Chairman of the Political Affairs Committee, I assured him that Albania is most willing to accomplish all the obligations stemming from being a member of the Council of Europe, taking into consideration everything that paragraph 17 contains.

      Since the very beginning, I have hailed the co-operation programme already established between the Council of Europe and the Prosecutor's Office, in order to transform the latter into an institution of European standards. Being completely certain of the success of this programme and optimistic for the future programmes in this field, I would suggest that if possible this amendment be excluded from paragraph 17.

      I do not make any mistake if I repeat that I respect as sacred the independence of the courts as well as my complete commitment to respect the law. I may also restate the assurances of the Albanian authorities, that if the Nano case will be envisaged to be revised by the new Code of Criminal Procedure and the other codes that have recently entered into force, his case will be revised just as the case of any other Albanian citizen may be. In this vein, I consider inclusion of this amendment in paragraph 17 as not acceptable and not beneficial to the judiciary.

      As far as the problem of the budget of the Court of Cassation is concerned, I would like to inform you that our parliament has approved a law whereby the budget of the courts (including the Court of Cassation), should be passed to the Ministry of Justice, which, in compliance with the Main Constitutional Provisions shall exercise administrative supervision over the courts. The budget of the courts, including that of the Court of Cassation, shall be approved by the Parliament, separately for each and every one of them, and not by the Ministry of Justice.

      So the Ministry of Justice does not in any way interfere in the decisions of the courts, neither does it provide for their budget. Without claiming that we have found the best solution, but at the same time expressing our hope that through closer co-operation other solutions may be found in the future, I think that the additional amendment may be excluded.

      In regard to all the other amendments, I think that they are completely realisable and constitute the objective of our policy of integration and achievements of European standards.

      Finally, the Supreme Court of Justice unanimously decided to dismiss some lawyers on the local level because of administrative irregularities of great proportions. This decision is in complete conformity with the Main Constitutional Provisions.

      Having the highest respect for all your sincere efforts, I assure you of my frankness and sincerity in responding to the problems you have presented in both letters you have addressed to me.

      ...

      Reporting Committee: Political Affairs Committee (Doc. 7304).

      Committee for opinion: Committee on Legal Affairs and Human Rights.

      Reference to committee: Doc. 6638 and Reference No. 1794 of 30 June 1992.

      Opinion approved by the committee on 27 June 1995.

      Secretaries to the committee: Mr Plate, Ms Bakardjieva and Ms Kleinsorge.


1 1 See Appendix II in document AS/Jur (1995) 3.