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Preliminary observations of the Working Group on Enforced or Involuntary Disappearances at the conclusion of its visit to Albania (5-12 December 2016)

Albanian

12 December 2016

Introduction

A delegation of the United Nations Working Group on Enforced or Involuntary Disappearances concluded an eight-day official visit to Albania. The visit took place from 5 to 12 December 2016. The delegation was composed of the current Chair of the Working Group, Ms. Houria Es-Slami and Mr. Henrikas Mickevicius, member of the Working Group.

This is the first time that the Working Group visits Albania.

At the outset, the Working Group wishes to thank the Government of Albania for extending an invitation to visit the country. The Working Group thanks the Ministry of Foreign Affairs, in particular, for the cooperation extended prior to and during the visit.

The Working Group also wishes to thank the Office of the Resident Coordinator and the United Nations Country Team in Albania for their valuable support.

During its visit, the Working Group met in Tirana with the Parliamentary Sub-Committee on Human Rights, the Chairman of the Supreme Court, the Minister of Social Welfare and Youth, the Deputy Minister of Justice, and with representatives of the Ministry of Foreign Affairs, the State Intelligence Service, the General Prosecutor’s Office, and the Ministry of Internal Affairs.

The Working Group also met with independent State institutions including the Authority for the opening of the Sigurimi Files, the Institute for Integration of Former Politically Persecuted, the Institute for Studies of Communism Crimes and its Consequences, the Commissioner for Antidiscrimination, the Office of the Commissioner for Information and Personal Data Protection, and the Ombudsperson.

The Working Group met a number of formerly persecuted persons, including relatives of persons who disappeared under communism, and also held meetings with civil society organizations and with representatives of the international community.

The Working Group wishes to commend the Albanian Government for a number of positive steps aimed to address gross violations of human rights, including enforced disappearances which occurred under the communist regime. The Working Group hopes that these efforts will continue. It is not too late for healing and reconciliation in Albania.

Below are a number of preliminary and non-exhaustive observations and recommendations on a number of issues, which will be developed further in the country visit report to be presented to the Human Rights Council in September 2017. 

Legislation

Albania is a party to the International Convention on the Protection of All Persons from Enforced Disappearances (ICED), having ratified the Convention in 2007. The Working Group is pleased to note that Albania has recognised the competence of the Committee on Enforced Disappearances provided for in articles 31 and 32 of the Convention.

Albania has made enforced disappearances an autonomous crime in the Criminal Code1 under articles 74 and 109(c), consistent with the definition given in the 1992 Declaration on the Protection of All Persons from Enforced Disappearance (the Declaration), and punishable by appropriate penalties which take into account its extreme seriousness.

The current legislation covers the various modes of criminal liability, including in relation to any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance. It also expressly provides for the application of command or superior individual criminal responsibility for such crime. The Working Group would encourage Albania to expressly provide that enforced disappearance is a continuous crime to which amnesties, immunities or statute of limitations cannot be applied.

The Working Group is pleased to note that according to article 122 of the Constitution, international human rights treaties ratified by Albania prevail over national legislation in case of conflict.

Truth

It has been more than 25 years since the fall of the communist regime in Albania, yet the wounds of that painful past remain vivid. Albania is yet to deal adequately with the gross human rights violations committed between 1944 and 1991, when thousands of victims suffered from imprisonment, torture, internal exile, executions and enforced disappearances.

During meetings with civil society organizations, formerly persecuted persons, and relatives of disappeared persons, the Working Group heard heart-breaking stories of men and women, who for years have been searching for the remains of their loved ones, presumably executed by the communist regime, yet whose final whereabouts remain unknown to date.

It is estimated that approximately 6000 victims2 went missing during the communist regime. The Working Group was informed that some of the victims died during pre-trial detention; others lost their lives while serving imprisonment sentences or in concentration or labour camps; others were executed in accordance with death sentences passed by courts; while others perished while attempting to escape the regime, by leaving the country. While there are varying degrees of certainty as to the final fate of these victims, most are presumed dead, yet the location of their burial sites has never been disclosed to their families.

A number of ad hoc and fragmented efforts to search for the disappeared have been launched in Albania, yet none of them as part of a comprehensive truth-seeking State policy. These initiatives include the establishment of a short-lived inter-ministerial taskforce3 to search, locate and identify remains of persons executed during the communist regime, which did not provide the so needed answers sought by the relatives of those who remain missing. Even more worryingly, the Working Group was informed that most of the search for remains and the excavation of suspected burial sites that have taken place in Albania, have been undertaken by families of the disappeared, with their own financial resources, and without any expert or forensic support from State institutions.

The Working Group was informed of an envisaged agreement of collaboration with the International Commission on Missing Persons (ICMP), aimed at supporting the search for the people believed to have gone missing during the communist regime. The project would involve support as regards data management systems, sample collections, as well as DNA testing and matching. The Working Group urges the Government of Albania to finalize as soon as possible the necessary arrangements for the launch of this initiative, as the thorough examination of all identified burial sites cannot be postponed any longer. Meanwhile, immediate steps should be taken to adequately protect and preserve presently identified sites.

The access to information and to archives is an essential precondition to ensure the rights of victims to truth and justice. Access to classified information currently under the custody of the State Intelligence Services, the Ministry of Interior, and the National Archives, should be guaranteed to investigative and prosecutorial authorities for the purpose of investigation, and to the institutions tasked with studying the crimes committed under communism. These archives should also reasonably be accessible to families for the purpose of the search of their loved ones or their remains, as well as entities providing support to victims.

The recent process of establishing an Authority for the opening of the Sigurimi Files in Albania is a positive and welcome step in this regard. The Working Group calls on all relevant stakeholders, both governmental and non-governmental, to fully support the work of this new Authority, in order to maximize its results. At the same time, Albania should preserve all existing records and documentation relating to the human rights violations of the past, including enforced disappearances. This is particularly relevant in view of the repeated allegations heard by the Working Group of files possibly haven been already removed or tampered with.

Justice

The Working Group has repeatedly stated that impunity for committed enforced disappearances is a source for new violations in the future. The Declaration requires that the State guarantees to victims of enforced disappearance an effective remedy that includes a thorough and impartial ex officio investigation with a view to identifying those allegedly responsible for the disappearance and imposing the appropriate penalties.

The Working Group is concerned to learn that most of the crimes and gross violations of human rights committed in Albania under communism remain to be investigated and punished. The Working Group was informed that during the first few years after the fall of communism, some cases were initiated and reached the courts, but no case of enforced disappearance committed during those years has ever reached the Albanian courts. 

There are various reasons for the almost complete lack of accountability for these cases in Albania. First of all, investigative and prosecutorial institutions have not taken any initiative to investigate and bring cases to courts. Secondly, it was not until recently that the crime of enforced disappearances was explicitly included in Albania’s criminal code.

Family members of those who disappeared have not lodged judicial complaints due to lack of awareness and knowledge of the system, as well as distrust in the legal institutions. This distrust is further fuelled by allegations of corruption and political bias among the members of the judiciary, as well as of remaining links to the communist regime. Indeed, the Working Group heard numerous complaints that officials, who held positions of power within the communist regime, are currently engaged in State institutions, including the judiciary.

It is the sincere hope of the Working Group that, while long overdue, the recent Law establishing an Authority expected to shed light on secret Sigurimi files will facilitate attaining justice for victims and their families. It is also hoped that the completion of the ongoing Justice Sector reforms in Albania will contribute to increasing the trust in the judiciary, not only among victims, but among the population in general. The Working Group encourages the Government of Albania to swiftly advance in the implementation of the envisaged Justice Sector reforms. 

Reparations

All victims of enforced disappearances and their relatives have the right to full reparation, which includes compensation, satisfaction, restitution, rehabilitation and guarantees of non-repetition, as provided for in article 19 of the Declaration.

The information received by the Working Group indicates that the current legislation neglects aspects of restitution and rehabilitation. Compensation is reportedly limited to persons in possession of documentation certifying their status as politically prosecuted by the communist regime or their close family members and relatives. This leaves numerous families of victims of enforced disappearances outside the boundaries of the compensatory scheme.

It should also be noticed that, in order to file a claim for compensation, survivors of political prosecutions or their family members reportedly have to reach out to as many as five public institutions to collect documentation that the State itself is in possession of. This burdensome practice is discourteous to those who suffered under the dictatorship. It is also regrettable that the possibility of filing a claim for compensation was restricted to particular deadlines, which allegedly led to the exclusion of persons who otherwise would have been entitled to compensation, if they had made the claims within certain periods of time. For those who are entitled, the compensation is being provided through a staggered programme, although the need of these resources among the victims is immediate. 

The Working Group is of the view that the Government should revisit the current compensatory scheme. The right to compensation should also be extended to victims of enforced disappearances and their families who are not in the possession of documentation proving their status as politically persecuted. An amended compensatory scheme should include, but not be limited to, persons who were disappeared without a trial, such as persons who disappeared illegally under the law then in force, or in pre-trial stages of a criminal procedure, or attempting to cross the border. Finally, the possibility of submitting a claim for compensation should not be restricted by a time limitation.

The Working Group further recommends that the Government of Albania address the issue of reparations in a structured and comprehensive manner, streamlining and rationalising today’s piecemeal approach. It is the understanding of the Working Group that the compensatory scheme has been allocated under the joint responsibility of the Ministry of Justice, the Ministry of Finance and the Ministry of Social Welfare and Youth. One way of increasing the efficiency of such a mechanism could include allocating these responsibilities under one single institution, which could also be involved in other aspects related to reparations.

Memory

The Working Group wished to stress the importance of State-sponsored memorials as well as the State’s support for civil society remembrance initiatives. 

Despite the existence of a number of former labour camps, prisons, and at least 29 suspected burial sites in Albania, there are currently no State-sponsored memorials for the victims of communism.

One of the main claims heard from the former politically persecuted victims, as well as from relatives of persons who disappeared under communism, was the lack of recognition and memorialization of their suffering. The Working Group was informed of some positive initiatives undertaken by institutions such as the Institute for Studies of Communism Crimes and its Consequences. These include the publication of books and other materials, as well as the direct engagement with schools for the dissemination of information among high-school students. However, the limited amount of financial and human resources provided to these initiatives greatly hinders their reach and sustainability.

The Working Group takes this opportunity to reiterate the State duty to take measures aimed at preserving the collective memory from extinction4.

Conclusion

The Working Group noted a number of positive initiatives in Albania, which create good momentum to come to terms with the gross and systemic violations of human rights committed by the communist regime. However, a more comprehensive approach is needed.

The continued reluctance to address past abuses in a systematic manner will most certainly hinder Albania’s capacity to move forward into the very promising future it is striving to build for itself. Current positive initiatives aimed at good governance, institution building, and the rule of law, cannot and will not reach their full potential if restrained by the bulk of the country’s painful past. The State should encourage and facilitate a national public debate on the legacy of the communist past and how to collectively overcome its painful consequences. Such debate is especially important in this society lacking trust in State institutions and State-sponsored fragmented initiatives to deal with the sorrowful past.  

It is instrumental that State authorities in consultation with relevant stakeholders initiate and implement a comprehensive policy to address past abuses, including enforced disappearances. This policy should encompass the victims’ right to truth, justice, reparation and memory. 

While new cases of enforced disappearances are currently not been reported to the Working Group, and legislative steps have been taken to prevent the occurrence of enforced disappearances in the future, there is a lack of recognition of a large number of past cases. The slow progress in a structured search for all those who disappeared during the dictatorship, the general impunity for perpetrators of enforced disappearances, and the paucity of efforts at memorization of past abuses, including enforced disappearances, are a serious source of concern for the Working Group.

The Working Group stresses that enforced disappearance cannot be considered as an issue of the past. It is a continuous crime until the fate and whereabouts of a forcibly disappeared person is clarified.

The Working Group reiterates its willingness to support the Albanian government, and its citizens, in the efforts aimed at achieving such healing, as well as the full implementation of the Declaration on the Protection of All Persons from Enforced Disappearance.


Notes

1. Criminal Code (of 1995, amended in 2013)

2. http://www.sociale.gov.al/al/newsroom/deklarata-per-shtyp/zgjidhja-e-ceshtjes-se-personave-te-zhdukur-gjate-regjimit-komunist-ne-shqiperi

3. Decision No. 133 of 24 February 2010 on the Creation of a Task Force that will seek to find and identify the people executed by the communist regime. 

4. Principle 2 of the Set of principles for the protection and promotion of human rights through action to combat impunity (E/CN.4/2005/102/Add.1)