Honouring of obligations and commitments by Albania

Honouring of obligations and commitments by Albania

Doc. 7716
23 January 1997

Report (1)

Rapporteur: Mr Dumeni COLUMBERG, Switzerland, Group of the European People's Party

Summary:

Albania has made considerable progress towards the fulfilment of her obligations and commitments since she became a member state on 13 July 1995. In particular, Albania has ratified the European Convention on Human Rights and many of its protocols, as well as the European Convention for the prevention of torture and inhuman or degrading treatment and its Protocols.

However, a number of obligations and commitments remain unfulfilled as yet. In particular, the Albanian authorities should further continue reform of the Prosecutor's Office, judiciary and police. The "decommunisation" laws should be abolished or reformed to make them compatible with Council of Europe standards and principles. All political parties should participate in the political dialogue in the country and co-operate in the political institutions to ensure the successful continuation of the reform process.

Thus the Assembly resolves to go on monitoring Albania's compliance with its obligations and commitments until they have all been honoured.

I. Draft resolution

1.The Assembly notes that Albania has made considerable progress towards the fulfilment of her obligations and commitments since Albania became a member state on 13 July 1995.

2.In particular, the Assembly welcomes progress made recently in attempts to ensure the independence of the judiciary, and to reform the Prosecutor's Office. It congratulates Albania on its recent ratification of the European Convention on Human Rights and many of its protocols, as well as of the European Convention for the Prevention of Torture and its protocols. It regrets, however, that Albania limited the right to free elections at the same time, entering a reservation on this right covered by Protocol No 1 to the European Convention on Human Rights.

3.The Assembly also notes that, in conformity with its commitment to this effect, Albania has instituted and observed a moratorium on executions of death sentences, although as yet undeclared.

4.However, a number of obligations and commitments remain unfulfilled as yet, so that more progress is necessary before the Assembly can close the monitoring procedure under Order No 508 (1995) on Albania. In particular, the Albanian authorities should in the near future:

sign and ratify those Council of Europe Conventions and Protocols listed in Assembly Opinion No 189 (1995) which they have not already;
implement the proposals of the European Commission for Democracy through Law on the reform of the Albanian judiciary, in co-operation with the Council of Europe Demo-Droit Programme, in particular regarding the appointment, dismissal and immunity of judges and prosecutors, and the composition, role and procedure of the High Council of Justice;
continue reform of the Prosecutor's Office and the Albanian Police Academy in co-operation with the Council of Europe;
grant significantly more time to lawyers meeting their clients in pre-trial detention;
abolish the law "On genocide and crimes against humanity committed in Albania during the communist rule for political, ideological and religions motives", and the law "On verification of the official figures and other persons related to the protection of the democratic state", or reform them to make them compatible with Council of Europe standards and principles as enunciated in Resolution 1096 (1996), especially in as far as the powers and the composition of the commission implementing them are concerned;
continue efforts to guarantee a fair tax treatment for the press, ameliorate media access in general to official information, and ensure that unbiased political reporting is aimed at on state television;
ensure that the police act in strict accordance with the law and that all allegations of improper conduct are properly investigated.

5.The Assembly invites all political parties to participate in the political dialogue and to co-operate in the political institutions in order to ensure the successful continuation of the reform process.

6.The Assembly resolves to go on monitoring Albania's compliance with its obligations and commitments under its monitoring procedure until all the remaining commitments and obligations have been honoured.

II. Draft recommendation

1.Referring to its Resolution ... (1997), whereby the Assembly has decided to go on monitoring Albania's compliance with its obligations and commitments and in view of Albania's remaining obligations and commitments, the Assembly recommends that the Committee of Ministers help Albania's efforts, in particular by

stepping up financial and expert aid to Albania in the fields of the legislative process, protection of human rights and reform of judicial institutions and law-enforcement bodies;
bringing the work on the establishment of a magistrates' school and the reform of the police academy (in the framework of the intergovernmental programme) to a rapid conclusion;
extending its co-operation programme to the Albanian bar association;
helping to build up local administrative structures which correspond to Council of Europe standards;
providing assistance in the elaboration of a new constitution.

III. Explanatory memorandum by Mr COLUMBERG

A. Introduction

1.Order No 508 (1995) provides for the monitoring of the obligations and commitments of member states. The Republic of Albania became a member state of the Council of Europe on 13 July 1995, following a positive vote in the Assembly. The Committee on Legal Affairs and Human Rights opened procedure under Order No 508 (1995) on 6 November 1995, and appointed me its Rapporteur. Lord Finsberg (United Kingdom, EDG) and Mr Ruffy (Switzerland, SOC) were appointed Rapporteurs by the Political Affairs Committee and the Committee on Relations with European Non-Member Countries respectively.

2.Under the procedure of Order No 508 (1995), the obligations Albania is bound to, like every other member state, are to be monitored, especially the observance of the rule of law and the enjoyment by all persons under its jurisdiction of human rights and fundamental freedoms (Article 3 of the Statute). In addition, the implementation of specific commitments Albania entered into upon its accession to the Council of Europe are to be monitored. The most important of these commitments are listed in detail in Assembly Opinion No 189. (1995)(2) and in the written declaration of 29 June 1995 signed by the Speaker of Parliament, Mr Arbnori(3).

3.This report deals with the most important commitments entered into by Albania, following a thematic approach: the signature and ratification of Council of Europe Conventions, human rights and fundamental freedoms, the judicial system, "decommunisation" laws and other issues. The report will not deal in detail with the recent parliamentary and local elections in Albania, the Assembly already having adopted Resolution 1095 (1996) on the parliamentary elections, and having sent an observer delegation to the local ones.

4.The report is to a large extent based upon the introductory memorandum drawn up by the three Rapporteurs (AS/Jur (1996) 10), taking only a few more recent developments into account, as well as the observations of the Albanian authorities received on 9 August 1996, in response to the introductory memorandum(4), which was sent to them on 10 April 1996, in accordance with the Committee's decision on 3 April 1996.

5.The Rapporteurs had the opportunity to visit Albania from 3 to 5 January 1996(5), assisted by Mrs Kleinsorge,Co-Secretary of the Committee on Legal Affairs and Human Rights, to monitor the country's obligations and commitments. The programme was very well organised by the Albanian parliamentary delegation at relatively short notice, and we would like to thank Mr Leon Shestani for organising such an excellent programme, all our interlocutors for the many profound, detailed and honest discussions we had, inter alia, with the President of the Republic, the Speaker of Parliament, Party and Committee Chairmen, and several Ministers. We were very impressed by the warm hospitality extended to us, and have based a large part of this report on the information provided to us in Tirana.

6.Following the contested parliamentary elections in May 1996, the Bureau of the Assembly, in accordance with Resolution 1095 (1996) and Order 524 (1996), sent an ad hoc Committee to Tirana from 27 to 30 August 1996, of which the three Rapporteurs were also members. The visit proved very positive, and its results have been summarised by Mr Ruffy in his information report, which was reproduced as an addendum to the progress report of the Bureau to the Assembly during the September 1996 part-session (Doc. 7633, Addendum III).

7.The Assembly also sent an ad hoc Committee to Albania from 17 to 22 and again from 25 to 28 October 1996, to observe the local elections, together with a delegation from the Council for Local and Regional Authorities (CLRAE). The ad hoc Committee declared itself generally satisfied with the conduct of the elections, although it regretted some irregularities.(6) Unfortunately, Lord Finsberg has since died. The Vice-Chairman of the Political Affairs Committee, Mr Van der Linden, has thus now taken over as interim Rapporteur.

B. Signature and ratification of Council of Europe Conventions

8.Albania undertook to sign and ratify a number of Council of Europe conventions within a relatively short time-frame. On 2 October 1996, Albania ratified the European Convention on Human Rights (ECHR), and Protocols Nos. 1, 2, 3, 4, 5, 7, 8 and 11. It recognised (with immediate effect from that day) the right of individual petition and the compulsory jurisdiction of the Court for the Convention and its Protocols. On the same day, Albania ratified the European Convention for the Prevention of Torture and its two Protocols.

9.Albania has also signed, but not yet ratified, the Framework Convention for the Protection of National Minorities. The country has not yet signed or ratified Protocol No 6 to the European Convention on Human Rights. It would be highly desirable if Albania could sign and ratify these legal instruments in the near future.

10.We congratulate Albania on having ratified the ECHR and most of its Protocols, but find it very regrettable that Albania decided to limit the right to free elections at the same time, entering a reservation on this right covered by Protocol No 1 to the ECHR. According to this reservation, which was entered for a five year period, the right to free elections will be subject to the Albanian laws on "genocide and crimes against humanity" and on "verification of the official figures and other persons related to the protection of the democratic state". These laws, which exclude a range of persons from participating in central and local elections, are dealt with under chapter E of this report. We have found them to be incompatible with the principles of a democratic state based on the rule of law, and hope that they will be abolished or considerably changed in the near future.

C. Human rights and fundamental freedoms

i.Freedom of expression and of the media

11.Amongst the commitments entered into by the Albanian authorities was the recognition of the vital importance of freedom of expression to a properly functioning democracy, as recorded in Article 19 of the Universal Declaration of Human Rights. Albania was asked to move swiftly to encourage and protect independence in broadcasting and in printed media - allowing complete editorial freedom, even-handed tax treatment, free availability of newsprint and equal access to broadcasting and printing facilities and to distribution outlets.

12.Albanian laws contain provisions which could stifle free expression and the independent media if they were applied in a partisan way. In particular, the Albanian Press Law, adopted on 11 October 1993, specifies prohibitively large fines or even prison sentences for violations of particular provisions, such as Article 20 (2).(7) Provisions included in the new Criminal Code proscribe insult or defamation to parts of the population, the President, public officials, constitutional order, the state and its symbols, and representatives of other states, and allow imprisonment for libel, insult, and invasion of privacy(8).

13.In the last few years, there were some allegations from journalists, international non-governmental organisations and Albanian opposition parties that prosecutions under the above-mentioned provisions were heavily influenced by the government and the ruling party, with only opposition and independent journalists being charged with violations of these laws. This was said to have led to self-censorship, and thus to have had a chilling effect on the freedom of expression. Amnesty International and Minnesota Advocates for Human Rights also put the case of Mr Ilir Hoxha into this context(9).

14.However, during our meeting with journalists in Tirana, our impression that the situation had changed for the better in the last six to nine months (despite the pre-election period) was confirmed by the journalists themselves. Only a few, very isolated cases of prosecutions ending in fines and imprisonment(10) and police harassment(11) were reported, and all journalists agreed that the questionable provisions of the press law and the Criminal Code were less often applied. Independent and opposition journalists' main worries extended to the "decommunisation" laws (see Chapter E), tax-treatment and the lack of access to information from state organs.

15.A journalist from an independent paper complained that there were especially high taxes for the independent press. Both the President of the Republic and the Speaker of Parliament denied this charge. However, it is a fact that newspapers are currently paying a tax on circulation, a tax on salary, an advertising tax, and a tax on profits, in addition to general taxes on transportation and other general taxes. It is possible that some independent papers do find this tax burden very high, since - unlike the government and the opposition press - they receive no state or party subsidies to offset the high taxes. A truly independent, non-partisan media is such an asset to democratic society that the tax burden on independent, non-subsidised papers might be reviewed by the Albanian authorities(12).

16.The other recurrent complaint - that of lack of access to official information - is one endemic to newly-emerging democratic societies. Most Albanian ministries and government offices are not yet in the habit of holding press conferences, so that it is often difficult to obtain official information, especially for independent or opposition newspapers. This may lead journalists to base themselves more on confidential and/or unofficial sources, or even on speculation. It might thus be in the interest of the Albanian authorities to consider ameliorating this situation.

17.In the run-up to the general election held at the end of May 1996, as well as in its aftermath, non-governmental organisations and journalists accused the Albanian authorities of harassing independent and opposition newspapers. The independent daily "Koha Jone" (Our Time) reportedly suffered most, with several of its distribution vehicles impounded, and members of staff arrested and questioned following a bomb attack in Tirana on 26 February 1996. Several opposition journalists claimed to have been beaten and detained in the run-up to the election. During a demonstration to protest the result of the elections on 28 May 1996 in Tirana, according to the NGO Reporters without Borders, some ten journalists were mistreated.

18.As far as electronic media is concerned, there is not such a variety of opinions as in the written press, since there is only one state TV. According to the Albanian opposition parties, the state TV station is entirely in the hands of the government, and they are not given the opportunity to express their views on it. During the election campaign in April /May 1996, state TV allotted each parliamentary party a certain amount of coverage, as stipulated by law, but prime coverage was nevertheless given to President Berisha campaigning on behalf of the ruling Democratic Party, for example on the nightly news (in addition to the special segment allotted for the electoral campaign).(13) The state TV station should give all (main) political parties equal opportunity to express themselves, for example in talk-shows or through advertisements, and should otherwise aim for unbiased political reporting, and aim, if possible, to establish a second and non-governmental channel.

ii.Freedom of assembly

19.In the run-up to and following the general elections, some Albanian opposition parties complained about a decree on political rallies and manifestations which had been signed by Communist President Ramiz Alia in 1990, and which was still in force at that time. In actual fact, the decree required the police had to be notified only of meetings in public places (3 days, in extraordinary cases 24 h beforehand). Thus, in general the freedom of assembly did not seem to be unduly restricted by the decree. However, some provisions, e.g. in Article 2 that the notification should include the slogans to be used , or in Article 3 that manifestations can be prohibited if they offend the national pride, were obviously incompatible with the needs of a democratic society. This Communist time decree was replaced by a new law on 12 September 1996, stipulating that no authorisation would be requested for indoor meetings and simplifying the otention of authorisation for outdoor meetings.

20.On Monday, 27 May 1996, the leading opposition parties called for a demonstration in Tirana's central Skenderberg Square to "protest the manipulation of the vote". The Ministry of the Interior declared the gathering illegal, and excessive force was used both on Monday and on Tuesday to break up demonstrations. According to reports from non-governmental organisations, not only opposition leaders and their followers were physically - apparently often brutally - attacked, but journalists suffered, too. The Democratic Party has recognised that "there were abuses and overreaction on the part of the public order forces"(14), condemned them, and promised that the guilty will be prosecuted.

21.It is important that the government recognise and grant the freedom of assembly, not only to supporters of their own party (who celebrated their reported victory in the elections only a few hours earlier on Tirana's main streets), but also to supporters of the opposition parties. First, the demonstrations of the opposition parties on 27 and 28 May 1996 should not have been declared illegal, and second, they should not have been broken up using excessive force as they were. The Rapporteur strongly urges the Albanian authorities to uphold the freedom of assembly and expression even in the current tense atmosphere.(15)

iii.Police powers

22.In June 1995, Amnesty International published a disturbing report on police ill-treatment and deaths in custody. According to this report, Amnesty International received over 100 reports of incidents in which members of the Albanian police force are alleged to have beaten, kicked or otherwise ill-treated people during arrest and detention. Amnesty International documented, inter alia, three cases of police ill-treatment leading to the death of the victim. We had asked the Speaker of Parliament before the accession debate in June to send us a reply to these allegations, which was received at the beginning of August and published as a Committee on Legal Affairs and Human Rights document (AS/Jur (1995) 31 rev.).

23.The reply of the General Prosecutor, Mr Dragoshi,(16) states that "criminality in the form of maltreatment, physical and psychic violence, torture and others in the organs of internal forces in 1994, and during the first six months of this year has displayed a growing tendency". While the Prosecutor's Office had initiated criminal proceedings against several policemen, there were few verdicts, because of lack of evidence, "dragging on" of cases before the courts, or the disappearance of the defendant. The General Prosecutor complained that "in some cases the defendants have been raised to posts of responsibility", and concluded that "such attitudes have encouraged the phenomenon of maltreatment in the police organs". He ended with an appeal to the Speaker of Parliament to "intervene in order to take quick measures for changing the outlook and methods of work of the police force, the police officers and their leaders at all levels, for the fulfilment of tasks in conformity with the law".

24.Since the time this statement was made there seem to have been many positive developments. According to the Chairman of the Court of Tirana, during the first half of 1995 many policemen were sentenced to several years of imprisonment for deliberate grave wounding causing the death of the victim or for murder. During our visit, we were further informed by the Minister of the Interior that one policeman had been sentenced to thirty eight years in prison, for causing his victim's death by maltreatment. He admitted that individual cases of mistreatment had taken place in the police forces, but said that their number was going down. Mr Dragoshi confirmed during our visit that in 1995 less prosecutions had been brought against members of the police forces than in 1994, but problems with cases of ill-treatment persisted. There have also been allegations of misconduct by the police and the secret service in relation to opposition parliamentarians.(17)

25.If these allegations are true, they are worrying. The police should be non-partisan, interested only in maintaining law and order. It should not interfere with non-violent meetings and demonstrations, especially not during the run-up to or the aftermath of a general election. We think that the primary problem that could be causing a certain politisation of the police force, and isolated abuses by individual members, is the lack of training and experience. While, as a short-term measure, the Ministry of Interior should ensure that no police officer steps out of line, and that those who do get punished, as a long-term measure a properly working police academy could contribute to solving the problem. The Council of Europe intergovernmental sector is currently working with the Albanian authorities to make the existing academy more compatible with Western European training standards, for example, by suggesting changes in the curriculum. We fully support this project and hope that it can be brought to a rapid conclusion.

iv.Minorities

26.Upon accession, the Albanian authorities committed themselves to sign and ratify the Framework Convention for the Protection of National Minorities, and to conduct a policy towards minorities based on the principles set forth in Assembly Recommendation 1201 (1993). As already indicated in Chapter B, Albania already signed the Framework Convention, and seems - in general - to be honouring its commitments in this field. The Chairman of the Human Rights Party (representing the Greek minority), had only one complaint: in certain areas the first grades of minority schools for Greeks did not start work. According to the Chairman, the regional councils had approved the opening of these grades, but the central government had intervened to block the decision "because the official criteria for the opening of the grades had not been met". Recently we were informed of the government's decision to allow the actual opening of several classes in public schools, in southern cities. We welcome the fact that an amicable solution has been found on the lines of the principles set forth in Recommendation 1201 (1993).

D. The judicial system

i.Independence of the judiciary

27.One of the central commitments the Albanian authorities entered into upon accession was 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 and by having them approved by the parliament". The Albanian parliament, when voting the 1996 budget, voted a totally independent, separate budget for the Cassation Court, the Appeal Court, and the District Courts; budgets which will be administered by the courts themselves. This is a big step forward for which the Albanian authorities must be congratulated.

28.Our visit in Tirana in January also enabled us to clear up a misunderstanding. In a previous memorandum, the Rapporteur had included the information that the Minister of Justice ordered a reduction of 50-75% of the salaries of all administrative staff at the Court of Cassation on 14 September -5, to take effect the next day. If this had been so, it would have been a grave violation of the independence of the judiciary. However, I was mistaken, since it turned out that the President of the Court of Cassation had - illegally, on his own initiative - been paying some of his administrative staff higher salaries than the law on salaries of public officers allowed for. The order of the Minister of Justice only reduced the salaries of these staff members to the legally foreseen amount, after a control of the financial department of the court by the Ministry revealed this problem.

29.Unfortunately, the independence of the Albanian judiciary seems less assured in other terms. On 5 September 1995, the government instituted a Constitutional Court investigation against the President of the Court of Cassation, Mr Brozi, alleging that he acted unconstitutionally by (repeatedly) suspending the execution of a number of lower court decisions. On 21 September 1995, the Constitutional Court ruled that the President of the Court of Cassation had acted unconstitutionally, by overstepping his competencies. President Berisha, charged with guaranteeing constitutional rights, immediately sent a letter to parliament, proposing that it dismiss the President of the Court of Cassation. Without the presence of the opposition parties (who had walked out in protest to an unconnected matter beforehand), or hearing the President of the Court of Cassation, the day's agenda of parliament was changed and a law dismissing Mr Brozi was adopted the same evening (seventy-three votes in favour with 77 parliamentarians present). Questions were subsequently raised by the opposition parties whether 77 parliamentarians were indeed present, or whether the quorum was perhaps only reached by manipulating three electronic voting cards of members of the opposition.

30.We would agree with the ruling party and most of the opposition parties that Mr Brozi's actions were untenable, because of the political nature of many of them. The criticism of his dismissal which now follows should thus not be construed as a defense of Mr Brozi's person or his actions. In fact, in most member countries of the Council of Europe disciplinary proceedings against Mr Brozi would have most certainly been instituted, possibly even ending with his suspension from office (particularly when added to the earlier illegality of salary payments). However, it seems to us that the constitutional provisions of Albania were not strictly observed in his case, and this sets a dangerous procedural precedent which could become detrimental to the independence of the judiciary.

31.Albania's constitutional provisions stipulate that a judge of the Cassation Court can only be removed from office if he has been convicted of a serious criminal offence, or if he has been judged to be mentally incapacitated. In the individual case of Mr Brozi, parliament unilaterally decided to add the criteria of "having acted unconstitutionally"; but it did not have the qualified majority needed to abrogate the relevant constitutional law. In fact, the Constitutional Court also cannot transform itself into an ordinary criminal court, so that its verdict could not have led to Mr Brozi's dismissal in terms of Article 6 (4) - conviction of a serious criminal offense. It can thus be concluded that Mr Brozi's dismissal did not fulfil the necessary procedural requirements. Even though the deed is done, the most important thing is that lessons must be learnt from it. We must ensure that such procedural lapses do not reoccur in the future.

32.The Minister of Justice told us that in one recent case, a drug trafficker who had been caught red-handed and had pleaded guilty was set free by a panel of three professional judges after two months of pre-trial detention. Since the Minister could not prove that the judges had been corrupted, he was going to the High Council of Justice to try to get the judges removed from office. We emphasised that it was legally impossible to dismiss these judges without evidence of their corruption. We found the attitude of the Minister of Justice disturbing, since the independence of the judiciary cannot be ensured if a judge can be dismissed by the High Council of Justice on allegations of corruption and without proof. This attitude also puts some question-marks over the legitimacy of the dismissal of a number of lower court judges from 1992 to 1995 for "corruption", "grave breach of discipline at work", "meting out arbitrary decisions which obviously run counter to the law" and for "not carrying out their duty as judges or as Chairman of the Court properly"(18).

33.The European Commission for Democracy through Law (Venice Commission) has drawn up an excellent opinion on the Albanian Law on the Organisation of the Judiciary (CDL (95) 74 rev.), at the request of the Committee on Legal Affairs and Human Rights. We do not want to repeat all its proposals here - suffice it to be said that we fully support them and expect the Albanian authorities to put them into practice as soon as possible, with the co-operation of the Council of Europe's Demo-Droit Programme. In the Venice Commission's opinion, special attention should be paid to the proposals regarding the appointment, dismissal and immunity of judges and prosecutors, and to the composition, role and procedure of the High Council of Justice, since otherwise judges in Albania will not "feel themselves free to arrive at their decisions without fear of negative consequences for their professional life"(19).

ii.The Prosecutor's Office

34.The Albanian authorities committed themselves, upon accession, 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. According to the General Prosecutor, Mr Dragoshi, at the time of our visit a lot of changes in the right direction had taken place already in connection with the entry into force of the new Criminal Code and Code of Criminal Procedure. The Prosecutor's Office had thus become "a body of criminal prosecution". The accusatorial system had been introduced, reducing the prosecutor's role in the proceedings to that of a party in the trial, instead of a body entitled to oversee whether human rights have been violated during the trial. The issuing of arrest, search and seizure warrants by the Prosecutor's Office were now strictly bound to the provisions of the Code on Criminal Procedure. A new "judicial police" had been established.

35.The structure of the Prosecutor's Office had also been changed. There were now 37 district prosecutor's offices (one near every district court), one national appeal Prosecutor's Office (near the appeal court), and the office of the General Prosecutor, which dealt with cases at the Cassation Court. This flexible centralisation ensured the independence of the individual prosecutors during the investigations they carried out and the trials they participated in. However, on the basis of the Italian and French models, the Prosecutor's Office was held to be part of the judiciary.

36.According to the General Prosecutor, reform was still going on, and expert help had been requested from the Council of Europe especially as far as internal structural reform and criteria for appointments, dismissals, etc. were concerned. The material conditions of work in the Prosecutor's Office were not good; salaries which were not high enough opened the way to corruption. Mr Dragoshi welcomed the proposed establishment of a school of magistrates in co-operation with the Council of Europe intergovernmental sector.

37.Some of the people we spoke to during our visit, however, claimed that the reform of the Prosecutor's Office had not yet gone far enough, since the law on the Prosecutor's Office had not yet been changed, even though the new Code of Criminal Procedure had come into force. It was alleged, for example, that prosecutors still took extra-judicial decisions, and that their activities were not transparent. Their powers were still perceived to be too large.

38.We welcome the important steps made so far in the reform of the Prosecutor's Office, and we support further reform (e.g. the issue of arrest warrants and the like by judges, not prosecutors). We strongly favour further aid from Council of Europe in this field - both on practical issues, such as training measures and the rapid establishment of a magistrates' school, and on more theoretical issues such as legal expertise for the drafting of internal guidelines, or the revision of the law on the Prosecutor's Office.

iii.The Bar

39.The Albanian bar association told us that the present laws established the Bar as a free and independent profession in general, in line with Western European standards. There were exceptions - for example, in some cases, the intervention of the Ministry of Justice was possible - but it was hoped that such shortcomings would soon be rectified. However, the bar association regretted very much that the Council of Europe had extended no help to it, whereas it had to the Prosecutor's Office and the courts. Reform was also necessary in the Bar, and Council of Europe assistance in this field would be greatly appreciated. We promised to suggest to the intergovernmental sector of the Council of Europe to consider this possibility.

40.The bar association also complained about not being consulted by the Albanian authorities themselves, even on matters which directly concerned the Bar (for example, on the advocacy law). In subsequent meetings we had with the Albanian authorities, we raised the wish of the Bar to participate in such deliberations, and we were promised that the Bar would be given this opportunity in future.

iv.Custody and detention

41.Since November 1994, the administration of the prison system has been under the responsibility of the Ministry of Justice (transferred from the Ministry of the Interior). There were no complaints about the conditions in prisons in general. However, the bar association raised the following problem: Lawyers are apparently allowed to visit their clients in pre-trial detention only for half an hour per day, which was sufficient time to prepare a defence. It is not clear to us whether this time-period is proscribed by law, or whether it has just developed in practice. In any case, to us this seems too short a time period: Unrestricted access of the lawyer to his client in pre-trial detention would, of course, be ideal, but - if a limitation is necessary - the maximum amount of time per day may be limited to two to three hours. We hope that the Albanian authorities will be willing and able to implement this recommendation as soon as possible.

42.Another complaint was made by the bar association in relation to two amendments made to the law on the application of the Code of Criminal Procedure, and to the Code itself, prolonging the entry into force of certain provisions of these laws from 1 August 1995 to 15 November 1995, and again to 1 March 1996. These amendments were adopted to prevent the setting free of suspects under current police investigation who had been held in pre-trial detention for more than 18 months, since the new Code of Criminal Procedure set 18 months as the limit, while the old Code set practically no limit as long as the General Prosecutor was in agreement. While the Minister of Justice emphasised the complexity of some of the cases involved, the bar association claimed that in most cases there was just not sufficient evidence. Thus, by virtue of these amendments, many detainees had not profited from the retroactive application of the Code of Criminal Procedure, and had been kept in pre-trial detention for two years or more.

v.Death penalty

43.In accordance with its commitments, Albania has reportedly instituted a moratorium on executions since the day of its accession to the Council of Europe. Due to the fact that public opinion continues to favour capital punishment, the moratorium has not been officially declared, although it is apparently observed. The sentences of three persons who were condemned to death under Albania's anti-genocide laws and the new Criminal Code have since been changed to prison sentences by the Court of Appeal. While the Albanian authorities have nearly another two years at their disposal to convince the populace of the futility of capital punishment, and to abolish it, Albania must go on respecting the moratorium on executions in the meantime.

E. Decommunisation Laws

44.In the last few months, two laws which can be classified as "decommunisation laws" were adopted and entered into force: The Law "On genocide and crimes against humanity committed in Albania during the communist rule for political, ideological and religions motives" (of 22 September 1995), and the Law "on verification of the official figures and other persons related to the protection of the democratic state" (of 30 November 1995). The Committee on Legal Affairs and Human Rights presented a report on "measures to dismantle the heritage of Communist totalitarian systems" (Rapporteur: Mr Severin, Romania, SOC) to the Assembly at the June 1996 part-session of the Assembly. Mr Severin's report (Doc. 7568) also dealt, inter alia, with the Albanian decommunisation laws (pp. 18-20).

45.The Albanian decommunisation laws, which are said to be modelled on the Czech law (but actually are not modelled on the currently applicable Czech law, which takes the amendments of the Czechoslovak Constitutional Court into account) proscribe that persons standing for high office - the president of the republic, parliamentarians, members of the government, high-level administrators, judges, prosecutors, officers of the judicial police, high-level policemen, officers in the Army, directors and editors of Albanian radio or television, persons holding leading positions in state insurance and financial institutions, as well as in state banks, rectors and directors of universities and schools of higher education, etc - are not allowed to have held certain functions in the period of 28 November 1944 and 31 March 1991. A provision which included journalists and employees with higher positions in newspapers with a circulation of over 3 000 copies was struck down by the Constitutional Court on 31 January 1996. The laws were also not applied to candidates for and persons elected to local councils and chairmen of communes during the October 1996 local elections.

46.These functions are, amongst others, members and candidates of the Political Bureau, secretaries and members of the Central Committee of the Party of Labour Albania in the districts and at analogous levels, ministers, deputies of the People's Assembly, members of the Presidential Council, Presidents of the Supreme Courts, General Prosecutors, and employees of the State security services. People registered in the State security files as collaborators (informers, denunciators, agents, owners of apartments who used by the secret services, witnesses in political trials) are also ineligible for high office. The laws are to stay in force until 31 December 2001.

47.The list of persons ineligible for office is very broad, covering all main aspects of public life and legislative functions between 28 November 1944 and 31 March 1991. The exclusion is thus not founded on any finding of personal criminality but extends to all within the broadly defined categories. This confers on the State what appears to be an unacceptably broad discretion, since persons are not made responsible for individual (criminal) behaviour in the past (as should be the case), but for mere association with others, regardless of any personal circumstances. This is probably not compatible with key principles enshrined in the European Convention on Human Rights (ECHR), such as the rule of law and the certainty required of criminal laws.

48.Several Albanian opposition parties, as well as Albanian journalists and international non-governmental organisations have criticised the decommunisation laws. Their criticism(20) is centred both on specific implications of the Albanian laws and on rejection of such measures in general. The general criticism is made on the basis of legal and human rights concerns such as the retroactive effect of the laws, their collective nature, and their contrariness to the presumption of innocence. Varying degrees of guilt, such as mitigating circumstances, are also not foreseen in the laws, so that former secret service agents will be treated no more severely than people who were coerced into collaborating with or informing for the secret police. The reliability of secret service files, on the basis of whom such decisions are taken, has also been called into question(21).

49.Apart from such general criticism which applies also - to some extent - to the Bulgarian, Czech and German decommunisation laws, and which Mr Severin has assessed in depth, some measures specific to the Albanian laws have been criticised. The most important and recurrent criticism concerns the fact that the Albanian laws debar candidates for parliament from election. The Socialist Party sees in this a violation of a right guaranteed under Albania's Constitutional Provisions - the right to be elected, which can only be withdrawn from the mentally handicapped and imprisoned convicts.

50.The European Court on Human Rights has ruled that any limitations on the right to vote or stand for election must "not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; ... they [must be] imposed in pursuit of a legitimate aim; ... the means employed [must] not be disproportionate. In particular, such conditions must not thwart "the free expression of the opinion of the people in the choice of the legislature."(22) While the aim of the Albanian authorities, to protect their fledgling democracy, is probably legitimate, the means employed seem disproportionate, since people are debarred from standing for election solely on the grounds of having held an official position in the past, regardless of any specific reprehensible actions or conduct.

51.The Socialist Party also criticises the time-frames indicated in the laws: as well: The right to be elected a parliamentarian was also being removed from people whose political biography only started between December 1990 and 31 March 1991, not only from the former Communists who started their careers during totalitarian rule 1944-1990(23). Questions have also been raised on the timing of the law, adopted with the votes of the ruling party five years after the collapse of totalitarianism and six months before a general election.

52.Practically all opposition parties have attacked the composition and character of the commission which verifies whether a candidate for election is "tainted", and thus whether he may run or not. The commission is alleged to be entirely in the hands of the present government, because the majority of its members are appointed by different Ministries. The Chairman of the commission has been appointed by parliament (in which the ruling party has the absolute majority, but on a common agreement between all the political parties represented, as underlined by Mr Arbnori, President of the Albanian Parliament), the Vice-Chairman and one member by the Council of Ministers (the government), and one member each by the Ministry of Justice, the Interior Ministry, the Ministry of Defense and the National Information Service (the secret service). Opposition parties thus fear that the commission is not neutral, but rather a tool in the hands of the present ruling party to bar candidates of the opposition from taking part in the election.

53.During the run-up to the election, 139 candidates were initially barred by this commission from taking part in the May 1996 general election, only three of whom belonged to the ruling Democratic Party. Seven decisions of the commission were overturned by the Cassation Court(24). The fears of the opposition parties thus seem to have been justified to a large extent. No figures have been forthcoming concerning the October 1996 local elections. In any case, commission members enjoy no guarantees of independence, since they are removable at the will of the appointing bodies.

54.The competencies of the commission, which confer upon it a court-like character, are also severely criticised by opposition parties. The commission has the right to investigate and to question witnesses, and in case of refusal to be a witness or false witness or testimony, persons shall be criminally liable under the Criminal Code(25). These rights of the commission are not matched by corresponding rights of the accused, such as the right to be heard, the right to get acquainted with the file, or the right to be defended by a lawyer. According to the Democratic Alliance the commission is thus an extraordinary court, the setting up of which is forbidden under Albania's Constitutional provisions.

55.The government holds the conviction that the decommunisation laws are really amnesty laws, because they cover only those people standing for high office (i.e. the files of "ordinary" secret service agents will never be opened). In their opinion, many people who had committed terrible crimes, who had actually ordered to kill people, would never be punished. Besides, even those people found guilty of being collaborators with the former regime would only be barred from holding high office for six years, which was hardly a harsh sentence considering their crimes. Both the President, Mr Berisha, and the Speaker of Parliament, Mr Arbnori, claimed that their laws were based on the Czech model (which has actually also been criticised by the Council of Europe), but that their laws were less drastic and far-reaching than the Czech one. They pointed out especially that there was the possibility of appeal to the Cassation Court. Mr Arbnori also explained the timing of the law: For three-and-a-half years former political prisoners like himself had waited for somebody to come forward to say sorry for the crimes committed. But nobody came forward; there were even declarations made in parliament along the lines of: "you deserved what you got from us". Thus, the tolerance of the victims was taken as a sign of weakness. These laws were thus necessary now not to take personal revenge, but to make sure similar crimes could not be repeated in the future.

56.In conformity with Mr Severin's report, the Albanian laws would have to be changed in several respects to become compatible with the principles of a democratic state based on the rule of law:

scope: the application of the law should be limited to people employed by the state in sensitive positions where they could harm human rights, for example in the state administration, the army, the security services; it should not affect candidates for election to parliament or local office; it should be limited to acts, employment or membership occurring from 1 January 1975 until the collapse of the totalitarian regime;
method: the possibility of inaccurate or false files of the security apparatus should be provided for in lustrating "conscious collaborators"; the possibility of persons acting under compulsion should be taken into account;
the commission: the composition of the commission should be changed to exclude any possibility of bias (that is to say close relationships of the commissioners to the government, the opposition, or political parties should be avoided), and its procedures should be changed to conform with the requirements of Article 6 of the ECHR.

57.At this point, we do not want to make any judgment on whether the commission as established under the Albanian laws has actually been neutral or not. However, we would like to point out that it is necessary not only that justice is done, but also that it is seen to be done. For this reason we recommend the Albanian authorities to change the composition of the commission, and to reform these laws to make them compatible with Council of Europe standards and principles as enunciated in Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems and explained in the previous paragraph, or that they abolish them altogether, as has already been recommended in Resolution 1095 (1996) on the recent parliamentary elections in Albania.

F. Other issues

i.The Constitution

58.Amongst the commitments entered into by the Albanian authorities was the establishment, within a reasonable length of time, of a constitutional commission in parliament. The Speaker of the Parliament, Mr Arbnori, has made several efforts to establish such a commission. The ruling party's offer in January 1996 to the opposition was a significant under-representation of the ruling party in the commission (45%), leaving the majority of seats (55%) to the opposition. The opposition parties rejected this offer, since they felt that there were no rules of procedure for the work of the commission (would decisions be adopted by consensus, or qualified or simple majority?), and that there were no guarantees that the draft constitution, once worked out by the commission, would not be submitted directly to a referendum without the consultation of parliament.

59.In our opinion, the opposition parties have acted wrongly and should have agreed immediately to participate in a constitutional commission as suggested by the Speaker. While Albania needs a new constitution, and it should be drafted by a pluralistic parliamentary commission, there are fears that the current parliament, with its over two-thirds majority of the Democratic Party, may adopt a constitution which might not be sufficiently balanced to find broad acceptance and approval. All the political and societal forces concerned should thus try to ensure that the constitution reflects the views and wishes of as many parties as possible.

ii.The case of Fatos Nano

60.On 17 October 1995, the Council of the Inter-Parliamentary Union (IPU) adopted a resolution on Case No AL/01 Fatos Nano, expressing that it "is extremely concerned at the combination of measures that have the effect of keeping Mr Nano in prison", "is particularly concerned that the plenum of the Court of Cassation, which was seized of Mr Nano's case prior to its dissolution, was prevented from proceeding with the case, and feels that this is inconsistent with standard practice" and " ... affirms therefore that Mr Nano's trial, regarding the charge in question, should be revised".

61.Mr Nano was initially condemned to twelve years in prison. After several amnesties decreed by the President, Mr Berisha, Mr Nano has two years and six months of his sentence left to serve.

62.The Socialist Party holds that the two amendments (mentioned earlier under the chapter of custody and detention) to the law on the application of the Code of Criminal Procedure, and to the Code itself, adopted on 26 and 28 July 1995, which allowed for the application of the old Code with regard to criminal cases which were in the investigation or trial stage up to the Court of Appeal, were specifically adopted to ensure that Mr Nano's case would not be reconsidered by the Plenum of the Court of Cassation(26). The Socialist Party also alleges that other measures were designed to keep Mr Nano in prison, such as the dismissal of the former President of the Court of Cassation.

63.Meanwhile, a letter from Mr Nano to his lawyer Mr Sanxhaku, dated 21 September 1995, was published in a newspaper. According to this letter Mr Nano has no more confidence in the Albanian judiciary following the dismissal of the President of the Court of Cassation, and refuses to be tried by it.

64.We are of the opinion that Mr Nano should be treated like any other citizen. Thus we join the IPU in calling for a review of Mr Nano's trial according to the new Criminal Code and Code of Criminal Procedure (under which a case can be reopened if new evidence comes to light), and call upon Mr Nano to co-operate fully with the Albanian judiciary in his own interest.

iii.Property

65.We received some complaints from (right) opposition parties and a union of landowners on the restitution of property. They claimed that their property had not been returned to them, and sharply criticised the law on land. However, we gained the impression that this view was held only by a minority, and that there was a broad consensus amongst ruling and (left) opposition parties alike on the current law on land and its implementation. Of course, individual abuses cannot be excluded. These can be brought to the attention of the European Commission on Human Rights (provided all national judicial remedies have been exhausted).

G. Conclusions and recommendations

66.We can thus conclude that the Albanian authorities have already made considerable progress towards the fulfilment of their obligations and commitments. However, some more progress is necessary before the Assembly can close the monitoring procedure under Order No 508 (1995) on Albania.

67.In particular, the Albanian authorities should in the near future sign and ratify those Council of Europe Conventions and Protocols listed in Assembly Opinion No 189 (1995) which they have not already, reform the judiciary in line with the proposals of the European Commission for Democracy through Law, continue reform of the Prosecutor's Office in co-operation with the Council of Europe and grant significantly more time to lawyers meeting their clients in pre-trial detention.

68.They should also review the tax burden on newspapers, ameliorate media access in general to official information, and ensure that all (main) political parties are given equal opportunity to express themselves on state TV (especially during election campaigns), and that otherwise unbiased political reporting is aimed at on state TV.

69.They should also ensure that the police does not step out of line, and that those police officers who do are punished without delay, and co-operate with the Council of Europe in reforming the Albanian police academy.

70.We fully support the work of the Council of Europe's intergovernmental sector on the reform of Albanian judiciary, the Prosecutor's Office and the police. In particular, we hope that the work on the establishment of a magistrates' school, and the reform of the police academy, can be brought to a rapid conclusion. We further ask the Committee of Ministers to consider extending its co-operation programme to the Albanian bar association, to help build up local administrative structures conforming to Council of Europe standards, and to step up its valuable aid in general.

APPENDIX I

Extract from Opinion No 189 (1995))

on the application by Albania for membership of the Council of Europe

_____

"...

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.

...

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.Therefore, the Parliamentary Assembly, on the understanding that Albania shares its interpretation of commitments entered into as spelt out in paragraphs 13 and 16, and now 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 of Human Rights and the compulsory jurisdiction of the European Court of Human Rights (Articles 25 and 46 of the Convention);

ii.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;

iii.to sign and ratify within a year from the time of accession the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment;

iv.to sign and ratify within a year from the time of accession the 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 recognise the vital importance of freedom of expression to a properly functioning democracy, as recorded in Article 19 of the Universal Declaration of Human Rights, and to move swiftly to encourage and protect independence in broadcasting and in printed media - allowing complete editorial freedom, even-handed tax treatment, free availability of newsprint and equal access to broadcasting and printing facilities and to distribution outlets;

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

vii.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 and by having them approved by the parliament;

viii.to establish, within a reasonable length of time, a constitutional commission as indicated in paragraph 8.

ix.to seek settlement of international disputes by peaceful means (an obligation incumbent upon all member states of the Council of Europe);

x.to co-operate fully in the monitoring process for implementation of Assembly Order No 508 (1995) on the honouring of obligations and commitments by member states of the Council of Europe, as well as in monitoring processes established by virtue of the Committee of Ministers' Declaration of 10 November 1994 (95th session);

xi.to study, with a view to ratification, the Council of Europe's Social Charter and the European Charter on Local Self-Government and for Regional or Minority Languages, and meanwhile to conduct its policy in accordance with their principles;

xii.to study, with a view to ratification, and meanwhile to apply the basic principles of other Council of Europe conventions, 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;

xiii.to sign and ratify within a year from the time of accession the General Agreement on Privileges and Immunities of the Council of Europe, and its Protocol,

..."

APPENDIX II

Declaration made on the occasion of the debate on Albania's request for membership of the Council of Europe on 29 June 1995

_____

I, the undersigned, approve of the following amendments and am willing to commit my country accordingly.

Amendment No. 1:

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:

In paragraph 17, replace sub-paragraph ii. 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 3 years of accession, and to put into place a moratorium on executions until total abolition of capital punishment;".

Amendment No. 3:

In paragraph 17, add "within a year from the time of accession" after "sign and ratify" in sub-paragraphs iii, iv and ix.

Amendment No. 4:

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

"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:

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

"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:

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

"to find a satisfactory solution to the case of Mr Fatos Nano, in conformity with the new Penal Code as it applies to all other Albanian citizens."

Amendment No. 7:

In paragraph 17, sub-paragraph vi, replace "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

"on the honouring of obligations and commitments by member states of the Council of Europe".

Amendment No. 8:

In paragraph 17, sub-paragraph viii, 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:

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 full control and having them approved by the Parliament;".

The Albanian authorities, in addition, commit themselves to provide an extensive written report by 20 August 1995 to the Committee on Legal Affairs and Human Rights

1.on the allegations contained in the most recent report by Amnesty International on police ill-treatment and deaths in custody (AI Index EUR 11/04/95, June 1995);

2.on the allegation that "pre-publishing censorship" exists on the level of printing houses;

3.concerning the dismissals of judges and court personnel on the local level: the number concerned, the procedure followed, and the exact reasons for their dismissal.

Strasbourg, 29 June 1995

(signed)

Pjeter Arbnori,

President of the Albanian Parliament

APPENDIX IV

Letter from the Albanian authorities dated 9 August 1996 in response to the introductory memorandum

(Letter from Mr Arbnori, Speaker of the Albanian Parliament, to Mr Columberg, Rapporteur of the Committee on Legal Affairs and Human Rights)

_____

...

First of all, I would like to thank you for your work following the monitoring procedure on the honouring of obligations and commitments entered into by the Albanian authorities, on the occasion of the accession of the Republic of Albania to the Council of Europe according to Order No 508 (1995).

Addressing you through this letter, I call your attention to the fact that the delay of our response was due to the closing and starting terms of the work of the Albanian Parliament. As you might be aware, some few days ago the Albanian Parliament ratified the European Convention on Human Rights and some of its protocols, and enclosing it in this reply is of basic importance, in my view, for the completion of your report on the honouring of obligations and commitments by Albania.

Based on Opinion No 189 (1995) of the Parliamentary Assembly of the Council of Europe, on Albania's application as a fully-fledged member, taking into account the commitments of the Albanian authorities underlined in paragraphs 13 and 16, and the list of obligations and commitments presented in paragraph 17, I would like to inform you of the following:

i.I have the pleasure to inform you that after the signature of the European Convention on Human Rights, the Albanian Parliament recently ratified this Convention and its protocols nos. 1, 2, 4, 7 and 11.

ii.Regarding Protocol No 6 of the European Convention on Human Rights, on the abolition of the death penalty: As you know, Albanian established a moratorium on executions of capital punishments within three years of accession. We will totally engage ourselves to abolishing the death penalty within this period of time, that will automatically render possible the ratification of this protocol.

iii.Parallel to the ratification of the Convention on Human Rights, with its protocols Nos 1, 2, 4, 7 and 11, the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment was also ratified.

iv.Albania has signed the Convention for the protection of national minorities and Albanian policy has been in the line of the recommendations of the Assembly. A further step was taken recently concerning the right of education in the Greek language, with the opening of three classes for minority in the following towns: Delvine, Sarande, Gjirokaster. It is also worth mentioning that Albanian-Greek relations are witnessing a period of increasing stability and further understanding.

v.Concerning the freedom of the press, significant progress has been made. We have the pleasure to inform you that there resulted no punishment for journalists last year. At the same time, an even-handed tax treatment towards all editorial subjects has been verified. The law on electronic media is in process, and the possibility of tax reduction for the editorial subjects is taken into consideration.

vi.Evident changes are been made concerning the Rules of Procedure and functioning of the Prosecutor's Office. Admirable work has been done in cooperation with the Council of Europe in transforming this institution; The adoption of the law on the organisation of the judiciary will transform it into a body which is in accordance with Council of Europe standards.

vii.As you might be aware, when adopting the court budgets for the coming year, their operating budgets were approved separately and under their direct and full control. Regarding the judiciary, we have welcomed the work performed by the mixed group of Albanian and Council of Europe experts, established under the supervision of the Secretary General of the Council of Europe, following the request of the Albanian authorities, on drafting the law on the organisation of the judiciary in accordance with Council of Europe standards.

viii.Despite the frequent proposals made by the Speaker of the Albanian Parliament on the establishment of a constitutional commission, as defined obligatory in the Main Constitutional Provisions, the opposition parties gave no response, ignoring the fact that the proposals made were very constructive in favour of the opposition, concerning the participation and the decision-making procedure as well. However, we assure you of our total commitment to swiftly finding a solution.

ix.The foreign policy followed by Albania has turned Albania into a factor of stability and peace in the Balkans. A consistent strengthening of the relations with NATO, in the framework of the "partnership for peace", has contributed to this. However, pursuing a selfrestraint policy has been difficult in view of the growing dissatisfaction of the Albanians living in Kosovo where the situation of the human and national rights of the Albanian population is deplorable. Albania would very much welcome a further engagement of the Council of Europe and its Parliamentary Assembly, especially through the Legal and Political Affairs Committee, on the Kosovo issue.

x.We affirm with great pleasure the existing cooperation in the monitoring process between the Albanian authorities and the Parliamentary Assembly. We believe that the Rapporteurs confirmed this during their visit to Albania in January, in the framework of the monitoring procedure. We assure you of our willingness for further cooperation.

xi.We are seriously studying the Council of Europe Social Charter and the European Charters on Local Self-Government and on Regional or Minority Languages.

xii.We are also studying the Council of Europe conventions and relevant principles related to extradition, mutual assistance in criminal matters, on the transfer of sentenced persons, etc. We express our willingness for closer and rapid cooperation in these fields.

Concerning the Nano case: Following the declaration signed by the Speaker of the People's Assembly of the Republic of Albania, on the occasion of Albania's accession to the Council of Europe, may I inform you that in the light of the new Code of Criminal Procedure and that of the Penal Procedure, Mr Nano was given and has all the possibilities to have his trial reviewed, possibilities not consumed by him yet, declaring through his lawyer the lack of confidence in the Albanian system of justice and his hope that after the presumed victory of the Socialist Party in the elections of 26 May 1996, the reviewal of his case would become possible, only after the judges were changed.

Hoping for your understanding concerning all the arguments related to the monitoring procedure, and expressing our thanks for your contribution and your objective evaluation of the honouring of the above obligations and commitments, I avail myself of the opportunity to convey to you the assurance of my highest esteem.

...

APPENDIX V

Press release, Tirana, 22 October 1996

TIRANA, 22.10.96 - The COUNCIL OF EUROPE delegation which monitored the elections in Albania on 20 October 1996 is satisfied with the conduct of the elections, although it regrets that there were some instances of irregularities serious enough to warrant careful examination by the Central Electoral Commission.

The delegation believes that the elections were free and fair.

They reflected the will of the electorate and were also the product of thorough administrative and technical preparations that very largely complied with the requirements laid down by the Parliamentary Assembly in September 1996.

The most important of these requirements, taken on board by the President of the Republic of Albania, was to convene a Round Table with all political parties, which has determined the climate of the elections.

The delegation notes that these elections were preceded by a peaceful election campaign free of any significant incidents, and that co-operation within the polling stations on polling day was generally good.

The Council of Europe delegation hopes to have made a contribution to the consolidation of democracy in Albania. It welcomes the fruitful co-operation with the Central Electoral Commission and all political parties.

The Council of Europe delegation draws attention to the support from several other election-monitoring delegations present in Albania with which effective co-operation developed.

A joint report by the Council of Europe delegation will be presented to the Parliamentary Assembly and the Congress of Local and Regional Authorities of Europe. It will give a detailed assessment of the monitoring and set out constructive proposals on how certain shortcomings identified can be overcome.

Press release, Tirana, 29 October 1996

TIRANA, 29.10.96 - The COUNCIL OF EUROPE Observer delegation is generally satisfied with the conduct of the second round of elections on Sunday 27 October, as was the case of the local elections on 20 October, although it regrets that again there were some instances of irregularities serious enough to warrant careful examination by the Central Electoral Commission.

"These irregularities", said Andreas GROSS, member of the Swiss Parliament and spokesman of the delegation, "cause concern to the Council of Europe, with its responsibility for monitoring the democratisation process in Albania."

"There are two major areas of concern. The first relates to individual errors in the implementation of the electoral law and the need to improve the presentation of the list of voters."

"The second area of concern relates to certain serious incidents regarding the behaviour of some representatives of parties. Blatant attempts to interfere with a free and fair election process are totally unacceptable even in such a small number of cases."

Lady FARRINGTON, Rapporteur for the Congress of Local and Regional Authorities of Europe, added, "In a democracy, party representatives taking part in official proceedings should obey the law at all times and any grave breaches of this trust must be dealt with. Political parties should accept responsibility for the behaviour of their official representatives in local elections".

The delegation concluded that apart from these isolated incidents in the districts visited the polling can be said to have been sufficiently free and fair to be accepted as a reliable expression of the inhabitants' preference for their future mayor or head of commune, and agreed that these elections are a definite step in the right direction.

Out of the 31 districts where no candidate had obtained the required majority on 20 October, 21 were visited by international observers, including the Council of Europe's own delegation, which consisted of members of the Parliamentary Assembly and the Congress of Local and Regional Authorities of Europe.

A detailed assessment of the monitoring of both electoral rounds will be made in a joint report to be presented to the Council of Europe's Parliamentary Assembly and the Congress of Local and Regional Authorities of Europe. The report will also set out constructive proposals on how certain shortcomings identified in the local elections could be overcome.

Reporting commitee: Committee on Legal Affairs and Human Rights.

Budgetary implications for the Assembly: none.

Reference to committee: Order No 508 (1995).

Draft resolution and recommendation unanimously adopted by the committee on 20 January 1997.

Members of the committee: Mr Hag�rd (Chairperson), Mr Schwimmer, Mrs Err (Vice-Chairpersons), Mrs Aguiar, MM Ak�ali, Alexander, Bartumeu Cassany, Berti, Besostri, Bindig, Bobelis, Bu_ar, Cimoszewicz, Clerfayt, Columberg, Contestabile, Deasy (Alternate: Connolly), Dees (Alternate: Jurgens), Deniau, Fenech, Filimonov, Fogas, Mrs Frimansd�ttir, MM Frunda, Fuhrmann, Fyodorov, Mrs Gelderblom-Lankhout, MM Guenov, G�rel, Mrs Holand, MM Holovatiy (Alternate: Kostytsky), Hunault, Jansson, Jaskiernia, Jeambrun, Kelam, Kirkhill, Koschyk, Kovacevic, Kovalev, Kyprianou (Alternate: Christodoulides), Loutfi, Magnusson, Martins, M�sz�ros, Micheloyiannis, Moeller, N�meth, Mrs Novesk�, MM Pantelejevs, Pollo, Polydoras, Poppe, Prokop (Alternate: Plechat�), Rathbone, Rhinow, Robles Fraga, Rodeghiero, Severin, Sol� Tura, Solonari, Stretovych, Tahiri, Weyts, Mrs Wohlwend.

N.B. The names of those members who took part in the vote are printed in italics.

Secretaries to the committee: Mr Plate, Ms Chatzivassiliou, Ms Kleinsorge et Ms Clamer.

Note: 1 By the Committee on Legal Affairs and Human Rights

Note: 2

Note: 3 Reproduced as Appendix II.

Note: 4 See Appendix IV.

Note: 5 For the programme, please see Appendix III.

Note: 6 The information report on the local elections in Albania (Doc. 7699 Addendum I) was referred to the Committee (Reference No. 2140) in the framework of the monitoring process. The press releases of the Assembly's delegation are reproduced as Appendix V. Furthermore, the Political Affairs Committee will deal with the elections in its opinion.

Note: 7 Article 20 (2) states that an editor-in-chief or publisher who fails to stop his or her publication from committing a violation of criminal law is to be punished with imprisonment for up to a year or by a fine, even if the failure was merely negligent.

Note: 8 These problems were already raised by experts of the Council of Europe working on the draft Criminal Code.

Note: 9 On 8 June 1995, Ilir Hoxha, the son of Enver Hoxha, was found guilty of "calling for hatred against parts of the population" and sentenced to one year in prison. The charges stemmed from an interview in the newspaper Modeste, where Hoxha defended his father's record and criticised the current government. (Albanian government representatives claim that Hoxha said that the masses which pulled down the statue of the Communist dictator and dragged it through the streets would suffer the same fate.)

Note: 10 The editor-in-chief of Aleanca, Mr Blendi Fevziu, had been sentenced on 6 December 1995 to a 200.000 lek fine for defamation and dissemination of false information, but his fine was waived upon a presidential decree of 8 December 1995. Mr Gjergji Zefi, editor of Lajmentari, was sentenced on 27 September 1995 to one month in prison and was banned from holding public office for one year for defamation of a government official and a police officer. Both prosecutions involved articles on corruption.

Note: 11 A journalist working for the opposition party press complained that sometimes police detained him and his colleagues for 3-5 hours, and confiscated their films.

Note: 12 The Committee was informed on 20 January 1997 that advertising tax and the tax on profits had recently been abolished.

Note: 13 There were so such complaints during the electoral campaign for the local elections in October 1996.

Note: 14 Letter of the President of Albania, Mr S. Berisha, of 4 June 1996, addressed to the President of the Assembly, reproduced in AS/Pol/Inf (1996) 4, p. 11.

Note: 15 This topic is also dealt with in Doc. 7611 of the Assembly, which was referred to the Committee in the framework of the monitoring procedure (Reference 2118).

Note: 16 AS/Jur (1995) 31 rev., pp. 20-23.

Note: 17 For example, during our visit the Socialist Party accused the police of beating its Vice-President, Mr Pellumbi, to prevent him performing public activities in the town of Lushnja - we were given photographs of the bruises on Mr Pellumbi's legs - and of hindering a number of other high-ranking party members in their work. The Democratic Alliance accused the police of threatening its MP and Secretary General, Mr Imami, and of preventing him going to a meeting in the district of Vermosh. It also accused secret service officers of investigating alliance meetings in Kombinat, Tirana, and Vrisera, Gjirokaster.

Note: 18 Citations from the answer of the Minister of Justice to the Committee on Legal Affairs and Human Rights, reproduced in AS/Jur (1995) 31 rev., page 27.

Note: 19 CDL (95) 74 rev., page 14.

Note: 20 All Albanian opposition parties have accepted the principle of lustration and the opening of secret service files in general.

Note: 21 The experience of the Czech Republic shows, for example, that intelligence officers sometimes earned bonuses by entering false names in the file, by attributing information from one person to three or four, or by continuing to register persons as "candidates for collaboration" even after they had refused to work with the secret service.

Note: 22 Mathieu-Mohin and Clerfayt v. Belgium, Series A No. 113, judgment of 2 March 1987, paragraph 52.

Note: 23 According to the Socialist Party, the period December 1990 - March 1991, when the Communist Party accepted the creation of other political formations, and Socialist Party leader Fatos Nano was Prime Minister, was already democratic.

Note: 24 According to Albanian government representatives, of the 139 candidates initially barred from taking part in the election, five were DP party members, 60 candidates are said to have appealed to the Cassation Court, the appeals of 50 of which were rejected.

Note: 25 The Speaker of the Albanian Parliament, Mr Arbnori, has pointed out, though, that the commission as an administrative body cannot itself order such penalties, but has to apply to a court to have such penalties imposed.

Note: 26 When these amendments which exclude review of a case according to the old Code of Criminal Procedure at the highest Court were adopted, the Court of Cassation had already started examining Mr Nano's file.