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COMMITTEE ON ENFORCED DISAPPEARANCES CONSIDERS THE REPORT OF ALBANIA

25 May 2018

The Committee on Enforced Disappearances today concluded its consideration of the initial report of Albania on its implementation of the provisions of the International Convention on the Protection of all Persons from Enforced Disappearance.

Introducing the report, Artemis Dralo, Vice-Minister for Europe and Foreign Affairs of Albania, said Albania placed great importance on the reporting process as a tool to ensure compliance with international obligations.  Albania had acceded to and ratified all United Nations human rights conventions, and as a member of the Human Rights Council from 2015 until 2017, it had contributed actively in the deliberations of this important body.  As a party to the Convention since 2007, Albania was committed to improving the legal framework for the promotion and protection of human rights, including on enforced disappearances, starting with its Constitution.  Enforced disappearance was defined as a criminal offence under the Criminal Code, in accordance with amendments adopted in 2013.  Historically, Albania had suffered greatly from this crime, whereby during the Communist era, a considerable number of citizens had been executed, while others had disappeared under unknown circumstances.  In this regard, Albania was drafting an agreement of cooperation with the International Commission on Missing Persons.

In the ensuing discussion, Experts inquired about the drafting of the report and whether non-governmental organizations, including organizations working on enforced disappearance as well as victims of enforced disappearance, had been included in the process.  They asked about the direct applicability of the Convention, and whether the principle of non-derogability of the prohibition of enforced disappearance was ensured.  They expressed concern about the somewhat ambiguous definition of enforced disappearance, as well as the absence of a definition of victims under the Criminal Code.  They also asked questions regarding the notion of due obedience, the principle of double jeopardy, the length of the administrative detention time period, reparations, universal jurisdiction, and child victims of enforced disappearance.  More specifically, they inquired about the progress made towards creating the Disappeared Persons Section within the Institute for Integration of the Former Politically Persecuted, as well as updated information on the status of the envisaged agreement of collaboration with the International Commission on Missing Persons.

In concluding remarks, Emmanuel Decaux, Committee Expert and Rapporteur for Albania, expressed his appreciation for the precise way in which the delegation had worked with the Committee this morning.  The Committee was very grateful for the openness demonstrated, as well as the written responses submitted over the course of the night, and the fruitful dialogue this morning.

Ms. Dralo, in her final remarks, said she hoped that the information that the delegation had provided would cover all information that the Committee needed, and stood ready to provide more information if needed.  She thanked the Committee Experts for their recommendations and suggestions, and assured them that these were taken very seriously. 

Mohammed Ayat, Committee Expert and Vice-Chair, in conclusion, expressed his thanks to the Rapporteurs who had worked rigorously on the country report of Albania.  They had carried out a very solid work that had given a basis for this dialogue.  He thanked all the parties for their participation for the fruitful dialogue.

The delegation of Albania included representatives of the Ministry for Europe and Foreign Affairs of Albania, the State Authority for Documentation of the Former Security, the Office of the Prosecutor of the Court of First Instance of Serious Crimes, the Ministry of Justice, the General Directorate of the State Police, the General Directorate of Prisons, and the Permanent Mission of Albania to the United Nations Office at Geneva.


The Committee will next meet in public at 10 a.m. on Monday, 28 May, to hold a meeting with Member States, national human rights institutions, non-governmental organizations and civil society, and United Nations bodies, specialized agencies and intergovernmental organizations.


Report

The initial report of Albania can be read here: (CED/C/ALB/1).

Presentation of the Report

ARTEMIS DRALO, Deputy Minister for Europe and Foreign Affairs of Albania, introducing the report, said Albania considered the reporting process, the constructive dialogue with the Committee, and the recommendations as a tool to ensure compliance with its international obligations, and as an opportunity to present the implementation of the Convention in Albania.  She informed that the Parliamentary Commission on legal and human rights had organized a public hearing with representatives of institutions on the implementation of the Convention.  Albania had acceded to and ratified all the United Nations human rights conventions, as well as those within the framework of the Council of Europe.  As a member of the Human Rights Council from 2015 until 2017, it had contributed actively in the deliberations of this important body.  As a party to the Convention on Enforced Disappearance since 2007, Albania was committed to improving the legal framework for the promotion and protection of human rights, including on enforced disappearances.  The Constitution contained provisions on the protection of life; equality before the law and non-discrimination; fundamental rights and freedoms; the prohibition of torture; punishment for cruel behaviour; inhuman or degrading treatment; and political, economic and social rights.  In view of human rights protection, a large number of independent institutions operated, such as the Constitutional Court, the courts of all levels, the General Prosecutor, the Ombudsman, and the Commission for the Protection against Discrimination.  Albania was undertaking concrete steps to implement the justice reform that had a direct impact on strengthening the rule of law, the judiciary system, and the consolidation of democracy, with a concrete impact on the daily lives of the people.

The provision of enforced disappearance was defined as a criminal offence under the Criminal Code, in accordance with amendments adopted in 2013.  There had been no cases of enforced disappearance during the reporting period.  The Constitution, the Criminal Code, and the Law on State Police defined and guaranteed the legal rights of persons deprived of their liberty.  The State Police considered the respect and protection of human rights as one of its main priorities and had thus far undergone 55 training sessions with 891 police employees in this regard.  The rights and obligations of detained persons, and the rights of foreign nationals were stipulated under the Standard Procedures entitled “Treatment and Security of Detained Persons in State Police Facilities, Identification and Resolution of their Requests/Complaints.”   There were 23 penitentiary institutions.  At present, the number of prisoners was 5,757 prisoners.  There were no secret premises for escorting or accompanying persons who were detained or arrested by the judicial police service as suspected or co-perpetrators of the offence of enforced disappearances.  Detainees were held in the premises of the security rooms of the State Police, which had officially been recognized by the General Prosecutor’s Office and Judicial District Prosecutor’s Office, the Ombudsman, and civil society organizations.  These premises remained subject to inspection. The Ombudsman’s Institution had full competence to inspect without prior notice all the penitentiary institutions.   In accordance with the standard procedure, “Technical Rules of Police Accompaniment”, the State Police had produced and put in place registers for data entry and reflection of data on persons.  No cases of non-registration of persons deprived of their liberty had been recorded in the prison system.  Among the recent developments were an implementation of the vetting system for all prison staff; the training of 1,454 prison staff; and 14 cooperation agreements with non-governmental organizations.

In Albania under the Communist system, a considerable number of convicted persons had been executed, while some had disappeared under unknown circumstances.  The drafting and adoption of an agreement of cooperation between the Council of Ministers of Albania and the International Commission on Missing Persons was ongoing in this regard.  Its purpose was to protect the rights of family members of the missing persons during the Communist period in Albania between 1944 and 1991, ensuring the location of the missing and the circumstances of their disappearance after the effective investigation, as well as to find the truth.

Questions from the Committee Experts

EMMANUEL DECAUX, Committee Expert and Rapporteur for Albania, warmly welcomed the delegation, noting that Albania had thus far submitted 27 reports to treaty bodies.  However, there seemed to be a slight misunderstanding as to the reporting.  He informed that this was the initial and not second report of Albania.  In the revised report, the order of the issues raised in the List of Issues document issued by the Committee had not been followed by the State party. 

Was the Inter-Parliamentary Commission an inter-governmental institution, and was civil society involved therein?  To what extent were civil society and non-governmental organizations really involved?  Human rights activists and victims were particularly interested in being involved.

Was the Convention considered as a whole, directly applicable?  Alternatively, did the judge decide whether a provision of the Convention was applicable or not?

How were freedoms guaranteed, particularly in reference to the principle of non-derogability of the prohibition of enforced disappearance, so as to ensure that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as justification for enforced disappearance?

On the definition of enforced disappearance as a crime against humanity, he was concerned as to the definition in the Criminal Code and, whether or not it was more limiting than that of the Rome Statute definition.  Could the State party ensure that article 74 had been undertaken verbatim from the Rome Statute? 

Were questions of chain of command systematically dealt with?  It seemed that a public official that had ordered the crime was sentenced to less years in prison than an official who had been ordered to execute the crime.  He asked the delegation to clarify these different penalties, among which there seemed to be inconsistency.

The Committee had not been given an answer on the chain of command and hierarchical superiority, and the duty to obey when given an order.  Was there a notion of due obedience or not?

DANIEL FIGALLO RIVADENEYRA, Committee Expert and Rapporteur for Albania, asked about the extent to which the domestic legislation answered the provisions of the Convention with regard to the continuing element of the crime of enforced disappearance. 

To what extent was it possible to prosecute individuals responsible for crimes against humanity but not enforced disappearance?

On measures adopted by the State on the principles to extradite and prosecute in relation to international cooperation, could the delegation explain how the principle of double jeopardy was resolved, as well as jurisdiction and extradition and the idea of being protected if of Albanian nationality?

Could clarification be given regarding universal jurisdiction, where there seemed to be some discrepancies?

Was the military competent to investigate and prosecute a person accused of enforced disappearance? 

Could the delegation clarify measures regarding the suspension of a civil servant responsible for having participated in a crime of enforced disappearance?

Responses by the Delegation

A Working Group had been established by an order of the Prime Minister, in order to conduct the reporting process.  As to the involvement of civil society therein, these had been invited to provide their contributions.  They themselves had provided a shadow report.  There were no direct contributions by specific non-governmental organizations dealing with enforced disappearances, or persons affected by enforced disappearance.

The definition of enforced disappearance in the Criminal Code contained the following three elements: 1) an arrest, detention, abduction or any other form of deprivation of liberty; 2) if this crime was conducted by public officials or in support of or acquiescence of the State; and 3) if it was a consequence of the refusal to acknowledge the deprivation.  Thus, article 2 of the Convention had been taken into account in the definition.

The Convention was directly applicable, except when its application came into conflict with a law.  To date, all legislation had been amended and did not conflict with the Convention.

The punishment for perpetrators of a crime of enforced disappearance was 10 years minimum and 20 years maximum.

The involvement of Parliament in the reporting process was considered very important.

Follow-up Questions by the Experts

EMMANUEL DECAUX, Committee Expert and Rapporteur for Albania, said that there seemed to be insufficient knowledge and understanding of the Convention, in particular the ongoing nature of the crime of enforced disappearances, as well as the treatment of the victims.

Regarding article 5 of the Convention, he noted that the Rome Statute of the International Criminal Court included a list of crimes against humanity, including enforced disappearances.  The Committee did not understand if the definition on enforced disappearances in the Criminal Code of Albania was an exhaustive definition of the crime, and if so, whether it took over the entire list of crimes under the Rome Statute.

DANIEL FIGALLO RIVADENEYRA, Committee Expert and Rapporteur for Albania, implored the delegation to be more specific regarding the specificities of the Criminal Code.

Another Expert asked the delegation to state which parts of the Convention were directly applicable.

Replies by the Delegation
 
Insofar as there was no conflict with the national legislation, the delegation reiterated that the direct applicability of the Convention was valid for all provisions of the Convention.

The Ministry of Europe and Foreign Affairs co-ordinated the reporting process for the United Nations treaty bodies.  Ministries and independent institutions in the field of human rights protection were invited to participate, while civil society organizations could be invited to participate.  There was no civil society organization working in the field of enforced disappearances in Albania.  A follow-up mechanism could play a very important role in fulfilling the reporting obligations and a project had been started in 2016 with the aim of establishing such a mechanism.

Fundamental human rights applied to all persons residing on the Albanian territory, without distinction.  Extraordinary measures could be taken in the case of a natural disaster or a threat to the country.  Restrictions of fundamental rights and freedoms could be established by law, in order to protect the rights of others.  These restrictions, however, could not violate fundamental rights and freedoms.

There was no law that allowed for human rights violations during a state of war, including for enforced disappearances.  The State Police Act stipulated the state of war did not alter the powers of police forces.

The procedure for investigations was the same for all criminal investigations, including for charges on terrorism.

Pre-trial detention could only be ordered if there was suspicion that a serious crime had been committed.

As to the amendments to the Criminal Code in 2013, the crime of enforced disappearance was defined as a category of a crime against humanity, when committed as part of a widespread systematic attack against a group of civilians on certain grounds and for certain motives.   It was punishable with up to 50 years. 

Criminal offences which contained elements of enforced disappearances included holding a person hostage, kidnapping, or illegal deprivation of liberty.

Regarding the question on when a subordinate could lawfully oppose an act of enforced disappearance by a superior, the law stipulated that a subordinate should obey all orders unless the order was contrary to the law.  When a subordinate considered that the order was illegal, they had to notify the supervisor or superior of the superior and ask for the decision in writing.

A superior was held liable for enforced disappearance if they knew their subordinate was committing a crime against humanity; exercised control over activities related to enforced disappearances; did not take all necessary measures to repress or punish the matter or submit the matter to the authorities for criminal investigation; and/or committed acts or gave arbitrary orders which affected the freedom of citizens. 

The limitation period for imprisonment for criminal prosecutions was a minimum of 10 years and a maximum of 20 years.  It was calculated from the moment of commission of the criminal act until the moment of taking the person as a defendant. 

Training was an important aspect of civil service, and training programmes included the provisions of international conventions ratified by Albania, as well as themes focusing on security, cultural diversity and discrimination, and other issues.  All police personnel underwent obligatory annual training.

Questions from the Committee Experts

DANIEL FIGALLO RIVADENEYRA, Committee Expert and Rapporteur for Albania, referring to measures to prevent enforced disappearance, asked the delegation to provide information on the progress made towards creating the Disappeared Persons Section within the Institute for Integration of the Former Politically Persecuted, as well as updated information on the status of the envisaged agreement of collaboration with the International Commission on Missing Persons.  All of this was related to the identification of the right to memory, as well as trying to combat impunity.  It was crucial to know what progress had been made on these issues. 

What was the application, in practice, of the norm of prohibition to extradite, return or expel when there was a risk of enforced disappearance?  Was there a protocol in this regard?  What were the rules of procedure?  Was there any kind of remedy or appeal against this kind of decision?

What was the maximum administrative detention time period, and how was free legal assistance provided? 

How many cases had been brought against illegal detention, and had any remedy been provided?
EMMANUEL DECAUX, Committee Expert and Rapporteur for Albania, referring to the definition of a victim, reminded the delegation that this definition was stipulated under article 24.1 which defined the victim as any person who had suffered harm as a result of enforced disappearance. 

He also reminded that reparations were defined very broadly and went far beyond material compensation of an individual, moving towards a reparative function of a society on the whole.  He asked whether this broad definition was undertaken in the legislation of the State party.

What methods existed for searching for child victims of enforced disappearance, including through DNA analysis?  What measures were in place for this purpose and in order to ensure the right of disappeared children to have their true identity established? 

Responses by the Delegation

The Disappeared Persons Section within the Institute for Integration of the Former Politically Persecuted had been established in 2014 in the Ministry of Health and Social Protection.  The responsibility of this unit was to collect evidence and create a database for establishing the fate of persons from the Communist era, who had died in prison or psychiatric and other institutions, or who been killed at the hands of police, the army, or at the border, or who had disappeared without a trace. 

As to the agreement of collaboration with the International Commission on Missing Persons, the aim of the draft agreement was to protect the rights of persons or families of persons who were missing during the Communist period in Albania. Currently, the agreement was still in internal procedures, and its aim was to establish the cooperation, functioning and modalities between the two parties to find the fate of the missing persons.  This included the specificities of the DNA process, the notification of families, and other details.  The draft agreement would soon be adopted by the Council of Ministers.

On the applicability of the Convention, Albania had ensured the harmonization of national legislation with all international conventions it was party to, and had established institutions for this purpose.  Additionally, it regularly ensured the training of officials in this regard.

Regarding the provision of legal aid to people that had been arrested, every person had the right to choose a lawyer.  When the person had no means, the prosecution office had the obligation to appoint a lawyer for the arrested person, from among the lawyers in the official list provided by the Albanian Chamber of Lawyers. 

It was true that no definition of a victim was provided under the law, however the Albanian language definition of a victim was very clear.  Additionally, recently the rights of the victim had been enumerated in an amendment under article 58 of the Criminal Code.

No case of a child victim of enforced disappearance had been recorded, neither in the National Database of DNA of missing persons, nor in the Forensic Institute.

Follow-up Questions by the Experts

EMMANUEL DECAUX, Committee Expert and Rapporteur for Albania, thanked the delegation on the clarification of the idea of the victim and asked them to submit in writing the provisions of Criminal Law related to the rights of the victim.
 
DANIEL FIGALLO RIVADENEYRA, Committee Expert and Rapporteur for Albania, commended the State party on the openness of data and classified information, and the great strides that were being undertaken with regard to the Communist era.  These could shed light on information that could make it possible to establish joint participation on the part of security forces and could even help to initiate criminal investigations against the perpetrators of these past crimes. 

The Expert also asked the delegation to share information on jurisprudence, as well as on universal jurisdiction.

Responses by the Delegation

Concerning the definition of the victim, in 2017, important changes in the procedural code had been made to enable the victim the right to have a lawyer chosen by themselves or their family.  The competent authority had the duty to appoint the lawyer for the victim. Thanks to these changes, the victim also had the right to be part of the process, to ask for evidence, and so forth. 

There were no cases of enforced disappearances among children, however, there were cases of missing children or children that were away from their families, whose whereabouts were unknown.  The State Police had created a database which registered all the criminal offences in relation with missing persons, children or other criminal offenses provided under the Criminal Code in relation to the right to life.  This system could be used to collect evidence on missing or disappeared children.

Concluding Remarks

EMMANUEL DECAUX, Committee Expert and Rapporteur for Albania, expressed his appreciation for the precise way in which the delegation had worked with the Committee this morning.  The Committee was very grateful for the openness demonstrated, as well as the written responses submitted over the course of the night, and the fruitful dialogue this morning.  The Convention provided a general framework for protection.  On the one hand, it included preventive measures, and on the other hand it provided concrete guarantees for the present.  Finally, it had principles covering impunity under article 27, which referred to the past.  Each country had its own, sometimes tragic, history.  Ratification and the transposition of criminal penalties was the starting point.  The Committee had been reminded that these criminal penalties were under articles 74 and 109 of the Albanian Criminal Code, and this was an important step for international cooperation.  Other mechanisms for international cooperation were under way, such as the Working Group and the Subcommittee on the Prevention of Torture, which had conducted visits, as well as the draft agreement with the International Commission on Missing Persons. 

All these initiatives were positive, however, this Convention had a modern systematic coherent framework – a dashboard that ensured a whole host of provisions that may appear technical but had their own rationale.  He underlined the importance of the legal framework that was available, noting that there could be some areas that were pending.  The dialogue had not covered issues related to human trafficking, including minors, and issues on the authority of superiors or due obedience.  He asked whether there were mechanisms in place to bolster the provisions of article 6.2.  Equally, in terms of the continuing nature of the crime, the Expert understood there were recent amendments to the definition of victims.  He noted, however, that there was a degree of lack of clarity in terms of a well-defined definition or conception of a victim.  He underlined the importance of taking into account the important role of non-governmental organizations, especially in the work around memory, and the inclusion of victims’ associations, which played a very important role therein.  Finally, he underlined the importance of training and awareness raising, not just for civil servants but for the general public.  The dialogue was just the beginning, he stated, adding that the dialogue had been a fruitful start to the process.  He reminded the delegation that if any written information was to be provided, this had to be done in 48 hours.

ARTEMIS DRALO, Deputy Minister for Europe and Foreign Affairs of Albania, thanked the Committee for the productive and fruitful dialogue.  She hoped that the information that the delegation had provided would cover all information that the Committee needed, and stood ready to provide more information if needed.  She thanked the Committee Experts for their recommendations and suggestions, and assured them that these were taken very seriously.  The Ministry for Europe and Foreign Affairs took the responsibility of this ongoing process very seriously, and the Government guaranteed and provided all line Ministries and institutions with information thereof.  She declared that Albania was under the process of negotiations for entering the European Union, and that one of the criteria it had to fulfil in this regard was the respect and fulfilment of human rights.  Albania had proceeded with big steps in this direction, but she acknowledged that there was a lot more to be done.

MOHAMMED AYAT, Committee Expert and Vice-Chair, expressed his thanks to the Rapporteurs who had worked rigorously on the country report of Albania.  They had carried out very solid work that had given a basis for this dialogue.  He thanked all the parties for their participation and for the fruitful dialogue.


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CED18.04E