POST-SOCIALIST TRANSFORMATION, PENAL REFORM AND JUSTICE SECTOR TRANSITION IN ALBANIA

Brad K. Blitz, Oxford Brookes University

ABSTRACT

The place of prisons is largely ignored in the literature on political transitions. Yet, given the historic role that prisons served in the former Communist bloc, as instruments of repression, the management of the penal system is an important indicator of democratic change. This article considers the development of the penal system in Albania from 1990 to the present day. It examines the state of pre-trial detention facilitates, prisons and prison hospitals and evaluates efforts by the Albanian government to reform the penal system. The empirical basis of this article is informed by interviews (N=20) conducted in Autumn 2006 with Albanian government officials, members of the prison administration, human rights monitors, international organisations, NGOs, penal experts, and donor governments. It also evaluates attempts by the European Union and Council of Europe to promote penal reform in Albania. The main finding is that in spite of its considerable investment in Albania, the European Union and associated partners have not managed to curb occurrences of torture and have had a limited impact over substantive penal reform. This article examines four explanations for the EU’s relative failure in this policy area. The principal reasons for Albania’s nonconvergence with European norms lie with the weakness of Albanian state structures and the persistence of systemic illiberal practices.

POST-SOCIALIST TRANSFORMATION, PENAL REFORM AND JUSTICE SECTOR TRANSITION IN ALBANIA

INTRODUCTION

Within the field of transition studies, there is little written on the role that prisons and penal policies play in the process of post-Communist political development. When penal issues are mentioned, they are usually discussed in the context of human rights abuses as documented in reports by international and domestic monitoring bodies. While this literature is important, it does not advance our understanding of the place of prisons in the changing political landscape and similarly ignores the ideological significance of this institution. 1 In post-Communist states, where penal institutions were historically an essential means of state repression, the place of prisons is a key site in which one can evaluate some of the substantive effects of political transition, above all state adherence to international standards of human rights. In the case of Albania, the place of prisons is particularly noteworthy. During the Communist period, they were used alongside extensive torture, arbitrary killings, and forced resettlement (often to inhospitable areas) in order to quell dissent. They also enabled the state to contain those considered disloyal to the Communist project and create a climate of fear to keep the population in line. 2 Intellectuals, artists, musicians, clerics, and anyone who challenged the Albanian Communist system were incarcerated3 and their presence, alongside other inmates, allowed the state to turn prisons in significant forced labour camps where large numbers of inmates died from physical abuse as well as malnutrition until they were discontinued in 1991.

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Arguably, the management of penal systems today is a crucial test for Albania, as it is for other democratising states that seek membership of the European Union since the prison, as an institution, is increasingly central to the European Union’s growing interest in human rights as a matter of both internal and external policy. Even before the signing of the 2007 Charter of Fundamental Rights, which attempts to bring the European Union in line with the Universal Declaration of Human Rights (UDHR) and the European Convention on Human Rights, on the issue of torture and mistreatment (UDHR Art. 4; ECHR Art. 3), the EU monitored the state of prisons and detention facilities as part of the accession process. Prisons feature in the monitoring reports for both Poland and Estonia from 1998-2002 and in every candidate state since then. Moreover, EU institutions have increasingly and unequivocably recorded their disapproval of human rights abuses in prisons. For example, in the 2004 and 2005 progress reports, Bulgaria and Romania were censured respectively for outstanding human rights concerns, including ill-treatment by the police and conditions of detention. The European Parliament has also issued a number of resolutions on the role of prisons in the European Union, as recently as March 2008.4 In its resolution of 16 December 2004 on Romania’s progress towards accession, the Parliament stated that it was “alarmed by the continuing reports concerning cases of ill-treatment at police stations, prisons, and mental hospitals” and called upon the Romanian authorities to “investigate effectively all abuses and bring to justice those responsible for human rights violations”. The Parliament also highlighted the arbitrary detention of people with mental disabilities in mental hospitals where conditions were inadequate.5 Similarly, in 2007, the EU called for greater implementation of penal reform in Bosnia, Montenegro and Turkey. 6 It should be noted, however, that in addition to its use of sticks, the European Union has provided several carrots to applicant states in order to help them improve their penal systems. For example, PHARE funding supported several initiatives to strengthen the role of

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prisons, most notably in the Czech Republic, Hungary, and Bulgaria through specific twinning projects. Other specific investments include a new prisoner-records management system in Romania financed by the PHARE 2000 programme. Through the CARDS programme and now the pre-accession instrument (IPA), Brussels has also supported Southeastern states and, in a new development, together with the UNDP and other donors has also granted funds to non-applicant states such as Georgia to improve the management and administration of the penitentiary system and has financed rehabilitation works and capacity building projects in Rustavi prison 6, in the hope that this investment will be used as a training model for the Georgian penitentiary services.7 Like other applicant states before it, Albania has received both sticks and carrots from Brussels. The context for both EU assistance and reform has been anchored in the progression towards Albania’s potential accession to the European Union as a result of its signing of a Stabilisation and Association Agreement (SAA) on 22 May 2006.8 It has also been guided by specific EU Partnership Agreements which were adopted, first on 14 June 2004 and in January 2006 when the European Council adopted a revised European Partnership for Albania. This agreement identifies short and medium term priorities which Albania should address, serves as a checklist against which progress can be measured, and provides guidance for EC assistance. 9 It also specifies a number of action points that relate to penal sector reform and include: a) ensuring that the relevant international conventions are observed in establishing and running new penitentiary facilities; b) ensuring compliance of the Albanian Criminal Code with the UN Convention against Torture; c) implementation of the 2004 master plan to improve conditions for detainees and prisoners on remand; and d) ensuring that the code of ethics for the prisons system is rigorously observed. In addition, the prison sector has been mentioned implicitly in progress reports which have stressed the need for better law enforcement procedures.10

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However, when compared to both previous accession states and other potential candidate countries, the European Union and its partners have been remarkably generous to Albania. Since 2001, the country has been able to participate in CARDS programmes and was the first non-member state to receive significant funding for the specific purpose of upgrading penal institutions. 11 Even before it signed the 2007 SAA with the European Council, Albania received multi-million Euro grants to construct prisons in Fushe Kruja (3.1 million Euro) and Korca (2.5 million) Euro12. Other notable funding for penal reform projects has been provided by the European Union in the form of both technical assistance and infrastructure development. Most notably, this includes the work of the European Assistance Mission to the Albanian Justice System (EURALIUS), a CARDS 2002 funded project which began in June 200513 which seeks to build capacity within the Ministry of Justice and the Judiciary. 14 This will assist Albania in the development of a more independent, impartial, efficient, professional, transparent and modern justice system. 15 Although there is a case to be made for Albanian exceptionalism – many prisons were destroyed by the unrest associated with the pyramid scandals in 1997 – the level of per capita investment in the Albanian penal sector by the European Union is particularly remarkable. Only Georgia, a potential applicant state, has received equivalent levels of funding for the size of its prison population. As research on other post-Communist systems has revealed, prisons play an important role in transitional states and influence patterns of regional development.16 The central question remains whether or not political pressure and investment from external parties enables transitional states to re-orientate their penal policies in line with Western standards. This paper examines the relationship between prisons, penal policies, and the development of post-Communist ideologies in Albania. It considers the place of prison in Albania as a means of exploring the nature of the state’s transition from authoritarian rule and the degree to which is it is integrating into European structures as part of the 2006 Stabilisation and

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Association Agreement.17 The central claim made in this paper is that reform of Albania’s penal system has been influenced by external demands and a desire to shed the image of a backward state in favour of a modern European country – irrespective of the level of infrastructure and state capacity to deliver a functioning system. The lack of substantial reform in the judicial and penal sectors has constrained the state’s ability to advance a realistic programme of penal restructuring. In addition, the continued practice of torture and other human rights abuses further calls into question the state’s commitment to reform. This paper begins with a review of the literature on transition, conditionality and the role of the European Union as an external actor. In the second part, it considers Albania’s development over the past seventeen years in order to understand why reform of the penal sector has frustrated the possibility of convergence with European standards. Then follows an examination of the history of prisons and penal policies in Albania and provides an assessment of the current state of penal reform. The article concludes by reconsidering the possibility of promoting substantive change through the application of conditionality and external funding sources in light of both Albania’s history and recent struggles. This paper is informed by interviews (n=20) with government officials, members of the prison administration, human rights monitors, international organisations, NGOs, penal experts, and donor governments in September 2006.18

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TRANSITION, CONDITIONALITY AND THE ROLE OF EXTERNAL ACTORS

Since the collapse of the Berlin Wall, the European Union has emerged as an increasingly influential actor, especially in the former Communist bloc. Arguably, its external influence is not only linked to its use of targeted funding programmes such as CARDS and pre-accession instruments (IPA) but also through a normative agenda which it has applied, often with a strong hand. As Heather Grabbe notes in her discussion of the 2004 enlargement process, while the European Union primarily relied on soft power in its attempts to bring candidate countries to accept its norms and methods, the European Council also used its considerable bargaining power in a coercive manner at key points during the membership preparations. 19 One essential theme is thus the application of conditionality. For applicant and candidate countries, conditionality is understood in terms of the incentives and sanctions applied in response to state compliance or non-compliance with EU norms and rules. It terms of political commitments, it includes adherence to the ‘Copenhagen Criteria’ and the transposition of the acquis communautaire into domestic law. In practice, it also entails adherence to parallel systems of human rights law since the European Union frequently invokes the growing body of international and regional human rights jurisprudence as a condition for participation in EU activities. For example, the various UN and especially the European conventions, including the Convention Against Torture, European Convention on Human Rights and the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment are now crucial anchors for transitional states seeking EU support. It should be noted that the parallel systems of international law are important, not least because they contains specific monitoring and reporting requirements by international bodies, including the Council of Europe. Other monitoring bodies such as the Organisation for

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Security and Cooperation in Europe (OSCE), which do not have a law creating function nonetheless have a political voice and cooperate closely with the European Union. Within the field of European Studies, there has been a rush of scholarly writing on the application of human rights norms and the functioning of conditionality. For example, research on the theme of democratisation has highlighted the shifting focus of European Union policy and identified some structural limits to its reach which include ideological barriers that undermine the application of conditionality. Frank Schimmelfennig (2007) argues that the promise of membership of the European Union and NATO enabled the former to co-opt ‘norm-violating’ but reform-minded states in the project of enlargement, but the European Union enjoyed less success with authoritarian governments where the costs of compliance were considered too high. He suggests that even though accession is an attractive political carrot, in practice there has been a trade-off between the introduction of democratic reforms and the preservation of power.20 Arguably Serbia’s recent domestic struggles over Kosovo’s independence and the surrender of war criminals, in return for the signing of a Stabilisation and Accession Agreement with the European Council, illustrate the way that interest groups and political leaders, most notably Vojislav Koštunica in this case, might militate against European accession, in favour of domestic agendas. The issue of conditionality also connects to the study of democratisation, since it calls into question the relationship between domestic-interest and external actor centered explanations for political change. During the height of ‘transitology’ in the 1990s a number concentrated on the task of defining the meaning of ‘democratic consolidation’ and argued that external pressure could not bring about essential markers of democracy which were internally located and illustrated by free and fair elections, a vibrant civil society21, an autonomous economic sector, and of course greater emphasis on the protection of human rights and the rule of law. In addition, the development of European norms was central to the

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test of democratisation. For example, O’Donnell drew attention to the justice sector and examined the role of the judiciary in particular as a guarantor of rights and freedoms. Philippe Schmitter emphasised the embedding of social values and Juan Linz and Alfred Stepan similarly claimed that argued that a distinguishing feature of consolidated democracies is when democracy becomes internalised not only codified in constitutions but expressed by state actions and public attitudes. 22 Adam Przeworski summed this up as the landmark reached when democracy is the only game in town.23 One unifying factor in the above-mentioned approaches is the emphasis placed on domestic politics and the need to examine change in relation to the state itself. 24 On this point, the extent to which states are able to withstand external pressures is also an important measure of democratic maturity. Recent sociological scholarship on networks and regime change has generated several evaluations of the process of political change which raise the bar further in their analyses of democratic alternatives. 25 Notably, a collection of East European trained sociologists has drawn upon empirical evidence of corruption and state capture in Russia and the former Eastern bloc to call attention to earlier classical theories on oligarchies and the role of elites in the development of anti-democratic political networks.26 Similarly, some of the critical literature on the nature of social capital records that networks may not simply facilitate international exchanges but also frustrate the creation of open systems and hence sustained democratic reform.27 The EU’s role as a political monitor has taken on greater significance since the 2003 European Council in Thessaloniki which set an important agenda for the inclusion of the Western Balkans in the European Union’s sphere. Since Thessaloniki, the EU has spent millions of Euros on programmes carried out through CARDS and has simultaneously taken over activities that were formerly conducted by OSCE missions. It has also explicitly linked human rights issues with the accession process, for example in the case of Croatia where it

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made cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY) and improved relations with the Serbian minority a condition for membership.28 Most recently in the case of Serbia where the capture of ICTY indicted war criminals Radovan Karadžić and Ratko Mladić has also been a condition for accession. Since the most recent enlargement in 2007, the expansion of the EU’s normative agenda in the area of human rights has gained greater significance as a result of the signing of the 2007 Charter of Fundamental Rights. Although not a constitutional document, the Charter attempts to bring the European Union in line with the Universal Declaration of Human Rights and the European Convention on Human Rights and has allowed institutions in Brussels and Strasbourg to draw upon provisions contained in both EC law and European human rights jurisprudence. For example, in 2007 the European Court of Human Rights ruled on a case in the Czech Republic where, among other factors, the failure to transpose the EU Race Equality Directive into law prevented the establishment of anti-discriminatory measures to protect Roma in Czech schools. This brought the Czech government into conflict with the European Court of Human Rights which in turn cited provisions on nondiscrimination contained in EC law in its decision. 29 Since the 2004 enlargement, several authors have questioned the application of conditionality for the successful transition to democracy and installation of the rule of law (See: Brusis 2005; Hughes, Sasse & Gordon 2007; Kocheov 2008; Raik 2004).30 One important conclusion of these works is the emphasis on elites as opposed to broad sections of the public (Raik 2004), which may lead to only partial reforms and the non-transposition of directives. For example, Geoffrey Pridham claims in his study of Slovakia and Latvia that once the incentives have been met for EU membership and once countries have acceded to the European Union, then momentum is lost.31 Similarly Steunenberg and Dimitrova (2007) found that the effectiveness of conditionality decreases sharply when the accession date is set

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and the EU accepts the candidate’s state of reforms as sufficient.32 Others note that the act of membership is often associated with a decline in the number of civil society actors, including human rights monitors, and this may allowed pre-accession abuses to continue often with little censure from Brussels (but occasionally from the European Court of Justice).33 An additional body of criticism claims that the influence of EU conditionality upon accession states has been quite exaggerated and has varied from one policy area to another.34 This may partly be explained by the diversification of external checks and balances and creation of new policy goals. While political conditionality has grown in importance with every round of enlargements, the goalposts have also shifted. 35 One political scientist contends that since 2004, policy has been driven by four main factors: i) challenging cases of democratisation in the Western Balkans; ii) lessons learned from the earlier 2004 enlargement; iii) the influence and outlook of Commissioner Olli Rehn; and, iv) a condition of ‘enlargement fatigue’ which has been accompanied by stronger pressures from European actors other than the Commission. 36

ALBANIAN EXPERIMENTS WITH DEMOCRACY

Albania has seen an interrupted process of democratisation over the past twenty years. Initial developments were quite positive until 1997 when a government backed pyramid scheme collapsed, destroying more than $1.2 billion in savings, and prompting country-wide riots that were only quashed following the introduction of an international protection force. Until that point, the small state had adopted some essential market-based systems and civil society organisations expanded, in part through the introduction of religious freedoms.

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However, the pyramid crisis of 1997 exposed the hollowness of these reforms and the empty shell that was the Albanian state. In 1990, Albanians were already well aware of events in the Eastern bloc and sought to reconnect to Europe (Biberaj 1998). Their knowledge of events beyond their borders had forced the Communist premier Alia to concede to multiparty elections which had formed rapidly and by 1991, a host of new parties existed across the political spectrum. However, Albania was also wracked by food shortages, strikes in the mining and public transport sectors, student unrest, and the exodus of more than 5,000 people into Greece and most dramatically, 25,000 Albanians who tried to enter Italy by boat.37 These crises were set against the backdrop of the initial win and later demise of the Communist Albanian Party of Labour in multiparty elections and subsequent coalition government. There was also greater pressure for reform of human rights and insistence that Albania seek membership in the Conference on Security and Cooperation in Europe. This brought with it additional commitments, including comprehensive revisions to the legal system to provide greater protection of human rights. There were some important reforms in the justice and penal sectors including the right to a speedy trial, legal defence and appeal; the reduction of the number of crimes punishable by death, and the removal of loopholes in the definition of crimes against the state. The creation of parliamentary democracy ultimately led to Alia’s removal from power and saw the installation of the leader of the Democratic Party, Sali Berisha, Albania’s first non-Communist president. Although the governments under Berisha moved ahead with market liberalisation and wide-ranging reforms in the areas of human rights – for example the removal of restrictions on religion -- these were contradicted by endemic problems of corruption and illiberal practices that were primarily focused on weakening political opponents.

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Other commentators have described Albania’s halted development by drawing upon cultural explanations for the state’s failings during the 1990s.38 While these explanations are not sufficient in themselves, they have some merit which helps to explain how Berisha governed and why more than fifteen years after the fall of Communism, Albania’s transition is still incomplete. Above all, historic divisions between the poor north and wealthier the south reinforced regional identities which political parties were able to exploit in terms of recruitment.39 Political recruitment still relies on extended familial networks (Besa) which had brought security during the Communist years, and while the population was overwhelmingly anti-Communist, it had been schooled in pragmatism. The creation of multiple political parties did not reflect widespread ideological beliefs among the membership but rather socially defined interests which Berisha was able to exploit to his advantage. By 1994, Berisha’s rule exhibited an increasingly authoritarianism streak which surfaced with the politically motivated and mafia-style murder of Democratic Party activist Gjovalin Cekini in Shkodra. The scandal that followed revealed evidence of transnational criminal rackets, involving Montenegrin groups, and saw further violent attacks on members of the Party. 40 Then, Berisha turned his attention to the former leaders of the country, including his political rival, Socialist prime minister, Fatos Nano who was accused of stealing $7 million in humanitarian aid and was eventually imprisoned along with the former leaders of the Communist Party. Berisha’s attempt to isolate the Socialists and purge the country of its former leaders was exemplified in the so-called ‘Genocide Law’ of 1995 that sought to punish those who had caused ‘economic, physical or psychological ruin of country.’41 There were also many attacks on minorities, including detentions of ethnic Greeks, and conflicts over the restoration of property, which created international problems, above all with Greece, and set back the country’s programme of openness (Human Rights Watch 1996).

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As Berisha sought to extend his control, fresh evidence of the state’s internal fragility was revealed by massive internal migrations. Villagers from the poorest parts of the north moved to Tirana and the major southern cities while disputes over land ownership continued to cause significant rifts within society. In their study for the World Bank, La Cava and Nanetti concluded that an estimated 400,000 people had migrated to the urbanised areas by 1995 and a further 190,000 emigrated abroad. Others suggest that by 1996, out-migration had reached 750,000 and was multidirectional, with migrants leaving, returning, then reemigrating.42 It is also worth noting that during this time approximately 60,000 people were involved in blood feuds – with families confined to their homes, too fearful to venture out and by 1996, over 900 people had been killed in vendettas (Vickers & Pettifer 1997: 274).43 Hence, the initial Berisha years were marked by societal conflict and dislocation. Albania's experiment with democratic reform came to an abrupt halt in March 1997 when large numbers of its citizens who had invested in get-rich-quick pyramid schemes, saw their savings disappear. Five of these schemes collapsed, destroying an estimated $1.2 billion in savings. This scandal provoked rioting across the country and mass protests against the government which had backed the suspicious scheme. This led to the destruction of the state’s fragile infrastructure including the burning down of many prisons, and gangsters in control of large parts of the country. A multinational protection force was sent in to restore order and set up the elections that formally ousted President Sali Berisha. Arguably the pyramid scandal introduced new doubts about the pace and nature of Albania’s transition. This instability was further compounded by the Kosovo crisis of 1999, when Albania served as an outpost for NATO troops and took in approximately 440,000 Kosovar refugees, about half the total number of ethnic Albanians who were driven from their homes in Kosovo. Since the pyramid crisis, the Albanian state has been reassembled even though its political and economic recovery was interrupted on several occasions as a result of the

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infighting between the Socialists (headed by Fatos Nano) and the Democrats (led by Sali Berisha). The key watershed year was 2001 when Albania entered a period of marked growth and began discussions with the European Union over assistance and participation in EU structures. Although the EU had been an active player in the region during the 1990s, its commitments accelerated through Albania’s participation in CARDS and other assistance programmes from 2002 onwards. Above all with the negotiations over the signing of partnership agreements and the 2006 Stabilisation and Association Agreement.44

PENAL REFORM IN ALBANIA

Given the importance of prisons to the repressive Communist state, and the use of imprisonment as a means of removing political opponents during the Berisha years, it is instructive to consider the place of prisons in contemporary Albania as a means of gauging the country’s transformation into a liberal European state. Indeed, it is helpful to recall that only 20 years ago approximately one per cent of the population (32,000) was incarcerated and labour camps still in use (Prisoners Overseas 2004). Conditions inside prisons and labour camps were as dreadful as in any of the former Socialist states where strikes and rebellions were met with mass executions and death sentences until the death penalty was abolished by the Constitutional Court in 2000.45 It is important to note that since the late 1990s, there have been significant improvements in the protection of human rights which are most relevant to this study.46 Albania has also signed up to several international agreements, some of which may be traced back to the first Berisha government and correspond with Albania’s admission into the Council of Europe in 1995. 47 In 1994 Albania ratified the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UN

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Convention against Torture) and the following year signed the equivalent European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. Further reforms were indicated by the creation of new citizens’ institutions such as the People’s Advocate and increased cooperation to improve access to penal institutions.48 The climate for NGO activity has also improved which has facilitated closer monitoring of prison conditions.49 One of the most publicised reforms was the 2003 inter-ministerial agreement to increase the capacity and authority of the Ministry of Justice which entails transferring all pre-trial detention facilities from the Ministry of Public Order (now called the Ministry of Interior) to the Ministry of Justice. To achieve this end, the latter, in cooperation with the Austrian Ministry of Justice and with the financial support of the European Commission, compiled a “Master Plan for the Pre-trial Detention System in Albania” which aims to set up a well-functioning pre-trial detention system and improve relations between prisoners and prison staff. 50 The construction of 12 new pre-detention centres throughout the country is also part of this master plan. An important reform currently in the pipeline is the new draft Order from the Ministry of Interior which seeks to improve the state of prison conditions by insisting on the application of human rights standards, closer monitoring and prompt documentation of abuse. 51

It also proposes faster transfers of female prisoners and provides guarantees for the

protection of civil rights while in the justice system such as access to legal representation. There are also new codes of behaviour, for example prison staff are not to use handcuffs on inmates and some evidence of positive developments has been recognised by international monitors, including Amnesty International. 52 In addition, there have been some notable initiatives in the areas of health care for people in detention. The Ministry of Health has now established practices for storing

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information in medical and dental files and is proposing raising doctors’ salaries to deter absenteesim. It has also introduced a new methodone treatment for selected drug users in prison. Regarding psychiatric hospitals, from June 2006 new procedures are in place for involuntary admissions and the Ministry of Health is considering ways to reduce overcrowding by transferring mentally retarded patients to special institutions under the Ministry of Labour and Social Affairs. In line with the above-mentioned Master Plan, the Albanian government has also signalled its willingness to invest in infrastructural reform across the penal sector. In March 2006, the country’s Council of Ministers issued its approval to the Ministry of Justice to begin construction of new pre-trial detention centers in the districts of: Elbasan, Berat, Vlora, Korca, Lezha, Fieri and Durres.53 To date, the level of investment has varied and the Ministry of Justice has stated that its priorities lie with the largest cities, namely: Durres, Elbassan, Berat, Fier and Vlora (in that order).54

PRISON MANAGEMENT AND MAINTENANCE

In spite of the above mentioned policy reforms, the state of the Albanian penal system has raised several worries and has caught the attention of international monitors, above all the Council of Europe’s Committee for the Prevention of Torture (CPT) which has visited Albanian police stations, detention centres, prisons and psychiatric institutions on eight occasions since 1997.55 Amnesty International also published a highly critical report on pretrial abuse in detention facilities in 2005 and the prison sector has been mentioned implicitly in progress reports issued by the European Union’s institutions which stressed the need for better law enforcement procedures.56

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These above mentioned monitoring reports have signalled three immediately worrying trends which continue to frustrate attempts to address the problem of prison overcrowding. First, there is a shortage of suitable space. While more than one third of remand prisoners have been transferred from the Ministry of the Interior to institutions under the authority of the Ministry of Justice, the Albanian government has encountered practical and financial difficulties which has slowed down the pace of reform. Consequently it missed its target of bringing eighty percent of all pre-trial facilities under the authority of the Ministry of Justice by the end of 2007. Second, and related to the point above, is the fact that prison population is growing and this is putting added strain on existing institutions. 57 According to the National Prison Administration there are currently 13 prisons that cater for 4,300 inmates, a figure well above the official capacity of 3,600 58. Third, there are concerns regarding the investment needed to sustain Albania’s penal institutions since the on-going cost of prison maintenance and staffing is estimated to be four million Euro per prison. 59 The OSCE Mission to Albania has recorded several instances of overcrowding and recent estimates have exposed problems in the allocation of beds, with several institutions housing more than twice the acceptable number of inmates including: Durres (230% above capacity), Fier (292%), Korce (222%) and Shkodra (210%). In these cases, overcrowding is frequently exacerbated by the accommodation of convicted prisoners in pre-trial detention facilities. Similarly, in prison and psychiatric hospitals where people in custody receive treatment, often as many as fifty per cent of the beds (840) are allocated to chronically ill and some mentally ill inmates rather than those under psychiatric order. Conditions inside the prisons and detention centres have been described as deplorable (CPT 2006) and have the object of much international criticism and recent domestic concern. According to the Ministry of Interior, several of the existing pre-trial detention centres which have not yet been targeted for transfer to the Ministry of Interior and where new building is

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not being planned require urgent renovation.60 Prisons in particular have been marked by food shortages and a lack of medicine with prisoners obliged to pay out of their own pocket for medicine. According to the Albanian Helsinki Committee, there were 312 health-related complaints in the first half of 2006 alone (Hysi 2006). Not surprisingly, the poor quality of prison conditions has given rise to unrest with prison riots in Tirana and Shkodra (2006) and hunger and other strikes at institutions in Kruja, Lushnje, Tirana, Peqin, and Burrel. Interviews with some government officials reveal that the physical situation of police commissariats is also generally appalling and this affects pre-trial detention premises; the worst centres being Kukes, 61 where young people were found to have no access to books, school materials, newspapers, magazines and nor lawyers. The small premises also denied minors the opportunity of physical activity. One major source of overcrowding relates to the functioning of the justice system which has produced an alarmingly high conviction rate of about ninety percent. Although the Albanian judiciary enjoys a sound constitutional foundation and should be capable of functioning in accordance with international standards, there are many problems that prevent the flow of justice and which disproportionately affect the functioning of the penal system. The OSCE Mission to Albania has been investigating the trial process and argues that the problems of overcrowding and material shortages are primarily due to the arbitrary way in which evidence is reviewed which helps to explain the conviction rate figure of over 90 per cent.

Suspects are sent down for minor reasons and there are long delays before individuals are brought to trial. Although the legal limit is 3 years, there are suspensions (often for group cases where one attorney may not show up). When sloppy evidence is submitted, judges tolerate it and use it in their decision – this leads to many being sent away to prison, perhaps without cause. In few cases do 19

judges look at all factors relating to pre-trial detention e.g. possibility of flight. Once in the pre-trial detention system, you are there until the official expiry. The government expects people to file a court request for release but this is illegal. This further helps to explain why pre-trial facilities are overcrowded.62

The uneven application of justice also explains why children are often detained for longer periods than adults. According to one UNICEF representative, children are remanded on average for five and a half months and often receive harsher sentences than adults. 63 Other commentators highlight the continuing practice of torture, and deliberate physical ill-treatment both at the point of arrest, during police questioning and in prison.64 The Albanian Human Rights Committee claims that torture and violence is directed not only at marginalised sections of the population, but also political opponents who have openly rejected the State policies. 65 According to the Albanian Human Rights Group perpetrators include police officers, prison police officers, judicial police officers and also the public prosecutor’s office, 66 claims that are supported by Amnesty International (AI).67 The 2008 US State Department Human Rights country report for Albania confirmed some of these practices and stated that police officers occasionally use violence against prisoners in detention (2008). Others put this more strongly and report that the police have used threats, violence, and torture to extract confessions even from minors (Children's Rights Center of Albania 2002). An indication of the ways in which police and other officials mistreat those in custody is included in the most recent CPT report from 2006 which described the situation in Durres Police Directorate:

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The accounts given by inmates, interviewed separately, appeared to be very similar to those already received during the 2005 visit. Allegedly, they had been handcuffed with their hands behind their back, and a helmet put on their head, before being severely beaten on their head with hard objects in an office on the third floor. They all described, once again, in the same way the very old design of the handcuffs (i.e. so-called "German-style handcuffs", with two metal bars attached to each other with metal screws), as well as the colour and the specific characteristics of the helmet. Both items were found by the delegation in the same cupboard/drawer in an office used by staff on the third floor of the establishment, where they had been discovered already during the 2005 visit (Council of Europe 2006: 9).

Also, given the above profile of detainees, it is important to record that detainees are frequently denied information about their rights and, in the case of juveniles, the presence of their legal guardians during interrogation.68 The situation within prisons is even more disturbing. There have been repeated allegations of abuse of prisoners by prison guards which have been recognised by some judicial bodies. For example, according to the Prosecutor's Office, prisoners in Prison 302 sent an anonymous letter to the Ministry of Justice in April alleging that they were regularly abused in their cells by guards. The General Directorate of Prisons investigated the above claims and determined that prison police had physically and psychologically abused 24 individuals multiple times. The relationship between psychological abuse and torture requires further clarification. The quality of healthcare inside prisons has been the subject of repeated criticisms by the CPT over the past eight years which has also condemned the situation inside

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psychiatric prison hospitals. According to Dr. Ariel Como of the Albanian rehabilitation Centre for Victims of Torture,

The situation of psychiatric hospitals is a “hidden emergency” that can’t speak so much. Apart from Amnesty, most organisations haven’t seen mental health as a focus of their work. But there is a link between what is happening in psychiatric hospitals and with doctors in prisons.’69

The link includes a high degree to absenteeism among doctors, psychiatrists, social workers and other key professionals as documented in the CPT report of 2006. During its 2005 visit, the expert team did not find any psychiatrists on hand at the institutions visited including the Kruja Special Institute for the Mentally Ill, Drug-Addicted and Elderly Prisoners, the Prison Hospital in Tirana, Tepelena Prison and Tirana-Vaqarr Prison. Consequently, prisoners who required treatment had to be removed from prison and transferred to a hospital for treatment (Council of Europe 2006). In other situations, abuse may be linked to the nature of treatment. For example, the Albanian Rehabiliatuion Centre for Victims of Torture claims that staff in the prison hospital in Tirana use medication in order to isolate, rather than treat patients. The view has been supported by the University of California at Berkeley Human Rights Center which found in 2000 that the hospital emphasised incarceration rather than treatment (UC Berkeley HRC). 70

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EXPLANATIONS FOR THE PERSISTENCE OF TORTURE AND ILLTREATMENT

The prevalence of torture in Albanian penal institutions has raised some critical questions about the functioning of the penal system as a whole. The World Organisation Against Torture (OMCAT) has cited particular legal and procedural gaps which aggravate the possibility of managerial oversight, for example the fact that torture is not adequately defined in the penal code which now contains two separate articles, Articles 86 and 87. Amnesty International has argued that the

formulation of Articles 86 and 87 of the Criminal Code which is too vague, and does not incorporate all the elements of the definition of torture as set out in Article 1 of the UN Convention against Torture, as well as other acts which do not amount to torture but which constitute cruel, inhuman or degrading treatment and punishment, as set out in Article 16 of the Convention [against Torture].71

Moreover, while Article 86 contains some of the key elements of the Torture Convention, it does not include all of them nor define what constitutes torture. All it says is that “Torture, as well as any other degrading or inhumane treatment is punishable by five to ten years’ imprisonment. For these reasons, AI has charged that

In effect it practically fails to define torture, both in its physical and mental forms, gives no indication of the element of motivation (to obtain information or confession, to punish, intimidate, coerce or for any reason based on discrimination) and fails to incorporate as an essential element of this offence that it is committed by, or at the

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instigation of or with the consent or acquiescence of, a public official or other person acting in an official capacity.72

Article 87 focuses on the effects of torture which are punishable -- “torture, as well as any other degrading or inhumane treatment, when it has inflicted handicap, mutilation or any permanent harm to the well-being of a person, or death” by 10 to 20 years’ imprisonment.73 In practice, however, there is no universal jurisdiction in court cases involving torture and consequently, when acts of torture committed by law enforcement personnel are brought to court, they are often described as ‘arbitrary acts’ and are therefore treated as less serious criminal offences. There have been no prosecutions against law enforcement officials under Article 86 and according to Amnesty International, it appears that the few prosecutions under Article 87 took place when acts of torture resulted in serious injury or death. Prosecution of acts of torture against detainees are especially rare. Human rights monitors describe a profound level of political influence over court proceedings which affects the degree to which individual victims are able to pursue justice. According to the Albanian Human Rights Group,

courts openly discriminate against private parties by dragging proceedings out or postponing them using absurd and/or unlawful claims in order to give parties that are prominent in the Albanian State more time. The courts also have the power to determine who is a legitimate private plaintiff and they use this as another method to fight demands or lawsuits (OMCT 2005: 20).

Further, there is a lack of prompt and impartial investigation of allegations of torture and illtreatment committed by law enforcement personnel and it is notably difficult for victims to

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present a case. Multiple obstacles prevent victims of torture and ill-treatment from filing formal complaint with public authorities; most can never obtain medical evidence in support of their allegations since there is an absence of systematic, professional and confidential medical examinations as noted by the CPT team in 2006:

In particular, in neither establishment visited were newly-arrived detainees subject to medical screening on admission (except in cases of emergency or upon request). Further, medical examinations/consultations when they did occur were still systematically carried out in the presence of police officers. It should be added that in those few cases when medical files had been opened, they lacked basic medical data and were usually accessible to non-medical staff. Such a state of affairs is totally unacceptable (CPT 2006: 15).

For NGOs working on behalf of victims of torture the cost of defending the rights of detainees is increasingly costly; one estimate is that it costs the Albanian Helsinki Committee more than 200 Euro per case.74 The combination of these factors has created a climate of de facto impunity for law enforcement personnel who commit acts of torture or ill-treatment against prisoners (OMCT 2005). Regarding the poor standards of health and medical care, the lack of infrastructure and training offers a partial explanation. Indeed, the poor quality of infrastructure and training has led some to speak of ‘system failure’.75 An equally important factor in the low standards of health and medical care, is the absence of internal checks and balances. As one medically trained expert put it --

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Who does the monitoring? At present monitoring is only conducted following [CPT] visits. There is no in-house monitoring. According to the 1998 legislation regarding the supervision of penal decisions, a commission was set up to carry out monitoring. This was to be a powerful body but when it started to function in 2004, it was blocked and denied a meeting place. In 2006, it stopped functioning again.76

These problems persist in spite of several attempts to introduce reforms by certain officials working at the top levels of government and the commitment by the Minister of Justice Aldo Bumci, to overhaul the penal system. 77

THE TEST OF PENAL REFORM

It is argued above that reform of the penal system presents a crucial test for Albania in its future plans for accession to the European Union. One might contend that there is a corresponding test for the European Union which has spent millions of Euros on policy and institutional reform projects in Albania and has applied conditionality throughout its dealings with the country. A review of the above evidence of the state of the penal system suggests that Albania has not taken on board European norms and has failed to address key concerns raised by monitoring bodies including the CPT and Amnesty International. The persistence of torture during the pre-trial process, the overwhelmingly sub-standard conditions in which prisoners live, and the failure to prosecute acts of torture committed by public officials calls into question Albania’s adherence to the acquis and acceptance of the human rights jurisprudence described in the previous section. One key question to address regards the failure of the Albanian state to institutionalise the above-mentioned European norms, as they apply to the penal sector. According to

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Pridham (2008), Steunenberg and Dimitrova (2007), the European Union should be able to exert maximum leverage over Albania given the fact that the European Council and Albania signed a Stabilisation and Association Agreement. The above literature review on conditionality and democratisation identifies four possible explanations for this political lacunae:

1) The costs of compliance are too high for domestic-interests that hold the keys to power (Schimmelfennig 2007); 2) Reformers have yet to introduce credible alternatives to authoritarian rule (Stjepan 1996) 3) The application of conditionality has been uneven across different areas (Haugton 2007) 4) The Albanian state has not yet developed the capacity to take on board the required reforms (Linz & Stepan 1996).

These will be evaluated in turn.

First, regarding the costs of compliance, since 2001, the argument needs further clarification. There is little evidence that certain sectors of the Albanian political system oppose membership in the European Union; and, all political parties have actively called for the promotion of human rights. Not since the first Berisha government when the collapse of the pyramid schemes led to nation-wide unrest and the imposition of emergency measures has Albania officially reverted from the democratic path. That said, within the justice sector, there is little incentive for judges to amend previous patterns of behaviour and take a more critical view of evidence submitted by police and prosecuting magistrates. Moreover, as

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noted by the Albanian human rights authorities above, there is considerable political interference at all levels of the justice sector. While there may be no ideological objection to the European project, in practice, compliance would upset the status quo and hence domestic interests. Second, the claim that reformers have yet to introduce credible alternatives to authoritarian practice appears to be supported but requires qualification. During the early 1990s, Albania’s transition to democracy was uneven and in spite of reforms in terms of market liberalisation and the creation of greater political and civic freedoms, many procedures which are intended to guarantee democratic practices were absent – these include the rule of law, governmental transparency and security. 78 Moreover, the Albanian state has constantly struggled with the pervasiveness of the besa system, which has frustrated the installation of democratic practices and the rule of law in some key regions (e.g. the Northeast). In the case of the Democratic Party under Berisha, it is helpful to consider the sociological literature on oligarchy and the role of elites in the development of political networks.79 Pareto and Mosca’s work on the circulation of elites goes some way to explain how politicians who depended on very local constituencies survived the inter-party wrangling of the 1990s. 80 It also explains in part how individuals were able to capitalise on social and party connections to exploit new market opportunities which were later cited as evidence of political corruption by external monitors, including Transparency International81 and more recently as a problem of structural extra-legality. 82 The establishment of a multi-party system did not reduce the Albanian society’s dependence on local networks which were fundamentally clan-based and anti-democratic. Indeed, as suggested by the interview data with OSCE officials, the application of justice is equally affected by personal and social criteria which are essentially arbitrary and contribute towards the incarceration of large numbers of individuals, often without serious evaluation of the evidence. Thus, while

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previous authoritarian practices have given way to different codes of behaviour, as suggested, the above system of public administration is essentially dominated by non-democratic, and in several instances, illiberal practices. To this extent, the above findings also reaffirm some of the path-dependent arguments for transition which stress the primacy of political culture and previous authoritarian practices. Third, the suggestion that application of conditionality has been uneven does not have much weight given that problems associated with both the management of penal institutions and the continued occurrence of abuse, including torture and ill-treatment, appears to be system-wide. The persistence of torture is directly connected to the functioning of the justice system, the establishment or non-establishment of oversight measures, and debatably an illiberal political culture which tolerates such abuses. These characteristics are not simply limited to the justice and penal sector, indeed there is a fundamental problem with the rule of law across Albania. Fourth, the argument for democratic maturity and institutional capacity appears to be the most important explanation for the insufficient degree of penal reform. As Linz and Stepan note in their 1996 comparative study of transition, a functioning state is essential for a democratic policy to emerge -- ‘democracy is a form of governance of a state. Thus, no modern polity can become democratically consolidated unless it is first a state’ (Linz and Stepan 1996: 7). A sovereign state is a prerequisite to democracy and until the start of the present decade, one might argue that several aspects of the state were absent during this key period of post-Communist development. For example, during the 1990s, the flight of thousands of Albanians to Italy and Greece challenged Albania’s territorial identity, the rise in mafia related crimes challenged its authority, and the nepotism that ran across public institutions defied the logic of clearly differentiated institutions of governance. Over the past five years, the establishment of liberal democratic institutions that are transparent and

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accountable to the electorate has been compromised by the extensive reliance on external parties for technical assistance while the Albanian state has at times remained especially weak, unable to provide social services, collect taxes, and has seen its authority challenged in many other areas until approximately five years ago when it developed greater enforcement of tax and excise duties collected at ports. Thus, the twin failures of the Albanian state to correct patterns of abuse and of the European Union to exert effective pressure for reform raise questions about the environment in which the application of conditionality may succeed. As illustrated above, the main deterrent to the creation of normative change has been the weakness of the Albanian state itself and the corresponding inability of the European Union to strengthen it sufficiently through its capacity building programmes. In this context, the EU’s focus on infrastructural development of penal institutions reflects a technocratic bias – rather than a radical rethink about the way the courts, hospitals, and prison systems function in a weak state where there are high numbers of economically disadvantaged individuals in these institutions.

CONCLUSION

Historically Albanian prisons have been used as instruments of state repression. As suggested by the extraordinarily high conviction rate and transfer from detention centres to prisons, their principal aim remains incarceration. They have been expanded as part of a campaign to ‘get tough on crime’ but also as a result of the inability of the justice system to evaluate its internal processes, especially at the pre-trial phase. However, the problems of penal reform described above further suggest that Albania’s transition is being driven by a rather limited ideology of progress which has emphasised technocratic and legal reforms rather than a structural rethink. The net result has been a rather mixed set of outcomes which

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include partial reform of the physical infrastructure, new reforms have been proposed, and the continuation of torture and other abusive practices. A more effective programme of reform would mean tackling the absence of democratisation head on – and thus the issues of corruption, the rule of law, transparency, and clientelism. Such an approach would of course challenge the state’s reliance on network (including Besa), rather than rule-based, traditions of public sector management and undermine familial networks which have sustained political constituencies over the past seventeen years. The main finding from this study is that in spite of its considerable investment in Albania, the European Union and its associated partners have not managed to curb occurrences of torture and have had a limited impact over substantive penal reform. The primary reason for the lack of reform lies with the relative weakness of Albanian state structures and the persistence of illiberal practices. These are characterised by the inability to install systems of oversight, tackle unjust procedures within the judiciary, and apply European norms and standards as expected. One additional finding from this study is that while other institutions have been addressed through more comprehensive programmes of public sector reform, penal policy has not benefited from joined up thinking; a strong case should be made for linking it more closely to judicial and social service reform initiatives. The process of European integration through the SAA process will hopefully force the state to extend its authority over the public sector and correct corrupt practices which run across the justice system. How this will happen remains to be seen but evidence from other transitional states, above all Russia, suggests that reform of the judiciary is paramount. In the meantime, however, there are , some ways in which penal reform could be advanced, for example by using alternative sentencing to reduce overcrowding in prisons; by providing housing to professionals working in the prison complex, so as to reduce absenteeism and ensure staff especially medical are on

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call to prevent abuses cited above; and by developing education and work opportunities inside prisons to address practical needs and provide skills that could possibly reduce threat of recidivism.

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REFERENCES 1

See: Althusser, L. 2001. ‘Ideology and Ideological State Apparatuses (Notes towards an Investigation)’ in Lenin and Philosophy and Other Essays. Monthly Review Press, pp. 127-186. 2 For a first-hand account see Giacomo Gardin 1988. Banishing God in Albania: The Prison Memoirs of Giacomo Gardin, S.J. Ignatius Press. 3 In 1947, there were 4749 people were incarcerated as a result of their political convictions (OMCT 2005) 4 See European Parliament (2008) European Parliament resolution on the particular situation of women in prison and the impact of the imprisonment of parents on social and family life (2007/2116(INI)). Internet at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-20080102+0+DOC+XML+V0//EN Accessed 12 August 2008. 5 European Parliament Resolution 16 December 2004 - P6_TA-PROV(2004)0111, (COM(2004)0657 – C60151/2004 – 2004/2184(INI)) 16 December 2004. Internet at: http://www.crj.ro/files/Romaniaprogress.pdf 6 See: European Commission, (2001) Regular Report on Turkey’s Progress Towards Accession. Brussels, Belgium: European Commission; European Commission, (2004) Regular Report on Turkey’s Progress Towards Accession. Brussels, Belgium: European Commission. 7 See: ‘The European Union assists Georgia with bringing the penitentiary system to European standards’, 15 February 2005. Internet at: http://www.delgeo.ec.europa.eu/en/press/15feb_2005.htm 8 See: LEGISLATIVE ACTS AND OTHER INSTRUMENTS - Subject : Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part (OR. en) Document 8164/06 -- COWEB 76, Brussels, 22 May 2006. http://ec.europa.eu/enlargement/pdf/albania/st08164.06_en.pdf 9 See: 2006/54/EC: Council Decision of 30 January 2006 on the principles, priorities and conditions contained in the European Partnership with Albania and repealing Decision 2004/519/EC 10 ‘Further effort should be made to ensure that law enforcement officers are aware of their human rights obligations, and that there is considerably better enforcement of these obligations, with transgressions being systematically punished.’ See: European Commission (2005) Albania 2005 Progress Report. SEC (2005) 1421. Brussels, 9 November 2005, p. 67. 11 For example, In Rrogozhina and Burrel prisons, new sections were built and in-cell toilets installed. 12 An additional grant for renovation and training of prison officers was made worth 1.73 million Euro. 13 EURALIUS began as a two year project under the responsibility of the Ministry of Justice of Austria, which is implementing the project in a consortium together with the Ministries of Justice of Germany and Italy 14 EURALIUS covers: Justice Organisation; Judicial Budgetary Planning and Management Law Drafting and Legal Approximation; Penitentiary Issues; Enforcement of Rulings; Case Management and Court Administration. 15 Further assistance from UN agencies including UNDP in Shkodra and WHO and Elbassan, have gone to support the renovation of Prison hospitals and psychiatric prisons, respectively. 16 See for example, Piacentini L. 2004. Surviving Russian Prisons: Punishment, Economy and Politics in Transition. Willan Publishing and Pallot, J. 2005. ‘Russia's penal peripheries; Space, Place and Penalty in Soviet and post-Soviet Russia, Transactions of the Institute of British Geographers, 30: 98-112 17 See: LEGISLATIVE ACTS AND OTHER INSTRUMENTS - Subject : Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part (OR. en) Document 8164/06 -- COWEB 76, Brussels, 22 May 2006. http://ec.europa.eu/enlargement/pdf/albania/st08164.06_en.pdf 18 This research was conducted as part of a three country study for the Council of Europe’s Committee for the Prevention of Torture (CPT). 19 See: Heather Grabbe (2006) The EU's Transformative Power: Europeanization Through Conditionality in Central and Eastern Europe, Palgrave Macmillan. 20 See: Schimmelfennig, F. (2007) ‘European Regional Organizations, Political Conditionality, and Democratic Transformation’, Eastern Europe, East European Politics & Societies, Vol. 21, No. 1, pp. 126-141. 21 Diamond, L and Plattner, M.F. (eds.)(1996) The Global Resurgence of Democracy, Johns Hopkins University Press. 22 See: Linz, J. and Stepan, A. (1996) Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe, Baltimore: Johns Hopkins University Press. 23 See: Prezeworski, A. ‘Some problems in the study of the transition to democracy’ in O'Donnell, G.A., Schmitter, P.C. and Whitehead, L.(eds.) (1986) Transitions from Authoritarian Rule Johns Hopkins University Press. 24 See: O'Donnell, G.A., Schmitter, P.C. and Whitehead, L.(eds.) (1986) Transitions from Authoritarian Rule: Southern Europe. Johns Hopkins University Press (Vols 1-4).

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25

See: Stepan A..(1996) ‘On the Tasks of a Democratic Opposition’, in Larry Diamond. and Marc. F. Plattner (eds) 1996. The Global Resurgence of Democracy, Baltimore, John Hopkins University Press. 26 See: Shlapentokh, V. , Vanderpool, C. and Doktorov, B. (eds.)(1999) The New Elite in Post-Communist Eastern Europe, Texas A and M University Press. 27 See: Putzel, J. (1997). Accounting for the “dark side” of social capital: Reading Robert Putnam on democracy, Journal of International Development, 9(7), 939-49 and Gargiulo, Martin, & Mario Benassi. 1999. ‘The dark side of social capital’ in Social capital and liability, eds. R. Leenders & S. Gabbay. Dordrecht: Kluwer. Portes, A. (1998). Social Capital: its origins and applications in modern sociology Annual Review of Sociology, 24, 1-24. 28 See: Blitz, Brad K. (2007) 2007 ‘Democratic Development, Judicial Reform and the Serbian Question in Croatia’, Human Rights Review, 9/1, pp.123-135. 29 European Court of Human Rights (2007) ‘Grand Chamber Case of D.H. and Others v. the Czech Republic (Application No. 57325/00) Judgment’, Strasbourg, 13 November 2007. 30 See: Brusis, M. (2005) "The Instrumental Use of European Union Conditionality: Regionalization in the Czech Republic and Slovakia" in East European Politics & Societies, Vol. 19, No. 2, 291-316; Hughes, J. Sasse, G. and Gordon, C. (2007) "Europeanization and Regionalization in the EU's Enlargement to Central and Eastern Europe: The Myth of Conditionality" in JCMS: Journal of Common Market Studies,Volume 45, Issue 2, pp. 525-527; Kocheov, D. (2008) EU Enlargement and the Failure of Conditionality: Pre-Accession Conditionality in the Fields of Democracy and the Rule of Law, Kluwer Law International (2008); Kristi Raik (2004) “EU Accession of Central and Eastern European Countries: Democracy and Integration as Conflicting Logics”, East European Politics & Societies, Vol. 18, No. 4, pp. 567-594. 31 Pridham, G. (2008) ‘The EU's Political Conditionality and Post-Accession Tendencies: Comparisons from Slovakia and Latvia’, Journal of Common Market Studies, Volume 46 Issue 2, pp.365 – 387. 32 See: Steunenberg, B. and Dimitrova, A. (2007) ‘Compliance in the EU enlargement process: Institutional reform and the limits of conditionality’, "in Josselin, J-M. and Marciano, A. (eds) Democracy, freedom and coercion: A law and economics approach. Cheltenham Glos: Edward Elgar. 33 See Blitz, B.K. (2006) ‘Statelessness and the Social (De)Construction of Citizenship: Political Restructuring and Ethnic Discrimination In Slovenia’, Journal of Human Rights, 5/4, pp. 1-27 34 Haughton, T. (2007) ‘When Does the EU Make a Difference? Conditionality and the Accession Process in Central and Eastern Europe’, Political Studies Review, Volume 5 Issue 2, pp. 233 – 246. 35 Hughes, J. Sasse, G. and Gordon, C. (2007) "Europeanization and Regionalization in the EU's Enlargement to Central and Eastern Europe: The Myth of Conditionality" in JCMS: Journal of Common Market Studies,Volume 45, Issue 2, pp. 525-527. 36 See: Pridham, G. (2007) ‘Change and Continuity in the European Union's Political Conditionality: Aims, Approach, and Priorities’ in Democratization, Volume 14, Number 3, (June), pp. 446-471(26). 37 See: King, R. and Mai, N (2002) ‘Of Myths and Mirrors: Interpretations of Albanian Migration to Italy’, Studi Emigrazione, 145: 161–199. 38 Vickers, M. (1999) The Albanians: A Modern History, IB Tauris & Co 39 Vickers, M. and Pettifer, J. (1997) Albania: From Anarchy to Balkan Identity. New York University Press. 40 See: Human Rights Watch 1996. Human Rights In Post-Communist Albania. March. Internet: http://www.hrw.org/summaries/s.albania963.html#TOC Accessed 18 April 2008. 41 Law on the Verification of the Moral Character of Official and Other Personnel Connected with the Defense of the Democratic State [No. 8043, November 30, 1995]). 42 For a good discussion of the multidirectional movements of Albanians during this period see: Konica, N and Filera, R.K. 2005. ‘Albanian Emigration: Causes and Consequences’. Unpublished Conference Paper. Internet: http://www.iza.org/conference_files/amm2006/filer_r1648.pdf Accessed 18 April 2008 and King, R, and Vullnetari, J. 2003 Migration and Development in Albania, Working Paper C5, Sussex Centre for Migration Research/Development Research Centre on Migration, Globalisation and Poverty. Internet: http://www.migrationdrc.org/publications/working_papers/WP-C5.pdf Accessed 18 May 2008. 43 See: Vickers, M. and Pettifer, J. 1997. Albania: From Anarchy to a Balkan Indentity. London: Hurst. 44 See: Stablisation and Association Agreement op.cit 45 See: Prisoners Overseas 2004. Internet at: http://prisonersoverseas.com/?page_id=244 Accessed 17 May 2008. 46 Formally, penal policy is addressed through a number of instruments including the Constitution, Law on Enforcement of Sentences, Law on Penitentiary Police, General Internal Prison Regulations, and Internal Regulations on the organisation and functioning of pre-trial detention. Basic human rights are guaranteed in the Constitution chapters 1-6 and the 1995 Criminal Code. Torture is specifically prohibited under Article 25 of the Constitution, as well as Chapter Two of the Criminal Code Articles 86 and 87 but is not defined in the Albanian legislation. The Constitution also sets out certain exceptions when torture may be permitted, namely during a

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state of war, emergency, or natural disaster. Albania has also signed and ratified a number of human rights conventions and protocols 47 These include: International Convention on the Elimination of All Forms of Racial Discrimination. (Ratified 11/05/1994, entered into force 10/06/1994); International Covenant on Civil and Political Rights (Ratified 04/10/1994, entered into force 04/01/1992); International Covenant on Economic, Social and Cultural Rights (Ratified 04/10/1991, entered into force 04/01/1992); Convention on the Elimination of All Forms of Discrimination against Women. (Ratified 11/05/1994, entered into force 10/06/1994); Optional Protocol to the Convention on the Elimination of Discrimination against Women (Ratified 23/06/2003, entered into force 23/09/2003); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Ratified 11/05/1994, entered into force 10 June 1994); Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. (Ratified 01/10/2003, not yet entered into force); Convention on the Rights of the Child (Ratified 27/02/1992, entered into force 28 March 1992). 48 Article 43 of the Law on the Rights and Treatment of Prisoners allows the People’s Advocate or commissioners authorized by the Advocate to visit pre-trial detention and prison facilities at any time. 48 For example, NGOs are now free to inspect pre-trial detention facilities. The head of police also issued a oneyear access permit to human rights NGOs such as the Albanian Human Rights Group and the Albanian Helsinki Committee to permit them to conduct investigations. 49 For example, NGOs are now free to inspect pre-trial detention facilities. The head of police also issued a oneyear access permit to human rights NGOs such as the Albanian Human Rights Group and the Albanian Helsinki Committee to permit them to conduct investigations. 50 For example, according to the Master staff members of pre-trial detention centres should be offered the opportunity to commission detainees to perform certain jobs. 51 Other reforms are currently in progress include: A new code on ethics for prison staff; new internal regulations for prisons of high and low security, for juveniles and for the treatment of prisoners with health problems;a new Council of Ministers Decision to provide remunerated employment to prisoners; the introduction of legislation on alternative sentencing; amendments to legislation in prison field in light of revised European Prison Rules. There is also a draft law on alternative sentencing which has been well received by members of the human rights community but this law has yet to pass through parliament. 52 See: Amnesty International (2005) ALBANIA: Obligations under the UN Convention against Torture - a gap between law and practice. Amnesty International Document EUR 11/001/2005, February 2005. Internet at: http://www.amnesty.org/en/library/asset/EUR11/001/2005/en/dom-EUR110012005en.pdf 53 See. Council of Ministers of the Republic of Albania, Decision No. 163, 21 March 2006 54 In particular, significant investments have been recorded in the following pre-trial detention centres Tirana 313 - where investment has been secured to build a secure detention facility for serious criminals; Durres – where a pre-trial detention facility was started with an investment of 1.5 m Euro by the Albanian government; Vlora – where the government initiated a small investment to improve conditions, damp proof, in addition to the 1.5 million Euro received from CARDS; Elbassan – where 1.7 m Euro were spent on refurbishing an old block for the prison administration and the construction of a new, separate, pre-trial block to accommodate 160-180 inmates; Fier and Berat – where the government secured deeds to land for building. 55 Visits were conducted on the following dates: 16/06/2008 - 20/06/2008; 28/03/2006 - 31/03/2006; 23/05/2005 - 03/06/2005; 13/07/2003 - 18/07/2003; 22/10/2001 - 26/10/2001; 04/12/2000 - 14/12/2000; 13/12/1998 17/12/1998; 09/12/1997 - 19/12/1997. 56 See: Amnesty International (2005) ALBANIA: Obligations under the UN Convention against Torture - a gap between law and practice. Amnesty International, Document EUR 11/001/2005, February 2005. Internet at: http://www.amnesty.org/en/library/asset/EUR11/001/2005/en/dom-EUR110012005en.pdf and European Commission (2005) Albania 2005 Progress Report. SEC (2005) 1421. Brussels, 9 November 2005, p. 67 57 International Centre for Prison Studies (2007) World Prison Brief – Albania. Internet: http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief/wpb_country.php?country=123 Accessed 17 May 2008. 58 The figures given include both pre-trial detainees and remand prisoners which make up a significant proportion of the total population (38%). The numbers of women prisoners and juveniles are low at 3.3% and 0% respectively and this fact is recorded in the relatively few penal institutions dedicated to these particular groups (International Centre for Prison Studies 2007). 59 Interview with Mr. Saimir Shehri, General Director of Prisons, Tirana, 13 September 2006. 60 Further to a needs assessment conducted by the Ministry of Interior, the following reforms totalling approximately 250,000 Euro were noted including the need to enlarge windows; repair floors, sanitation and

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sewage systems; improve ventilation (in addition to air conditioning and heating) as well as more beds and medicine in general. 61 Interview with Ms. Iva Zajmi, Deputy Minister of Interior and National Coordinator for Anti-Trafficking, Tirana, 13 September 2006. 62 Interview with Frank Dalton, OSCE, Tirana 13 September 2006. 63 There are several cases of minors receiving particularly harsh sentences, for example one child who stole a moped waited 7.5 months in a pre-detention site A 23 year old student accused on computer theft committed suicide in 313 where he had no psychological support. Interview with Leon Shestani, UNICEF, Tirana, 15 September 2006. 64 Council of Europe 2006, p. 9, Amnesty International 2005. 65 See: Albanian Human Rights Committee 2002. Pre-detention and Prison Conditions in Albania. Tirana: Albanian Helsinki Committee. 66 Cases of mistreatment recorded by the Albanian Human Rights Group include: Kutim Duri (2000); Naim Pulaku (2001); Bledar Mane (2002); Veladin Cela (2004) Roland Dhembi (2004); Bajram Charra (2004) 67 Amnesty International 2005, p. 3. 68 Interview with Vasilika Hysi, Albanian Helsinki Committee, Tirana, 14 September 2006. 69 Interview with Dr. Interview with Ariel Como, Albanian Rehabilitation Centre for Victims of Torture, Tirana, 14 September 2006 70 UC Berkeley Human Rights Center (2000) ‘The Albanian Mental Health System Report of A Consultation Visit June 4-11, 2000’, Human Rights Center University of California, Berkeley Internet: http://www.hrcberkeley.org/download/Albania_Report.pdf 71 Amnesty International (2005), p. 2. 72 Ibid, pp 5-6. 73 Ibid, p. 6. 74 The cost of stamps for 100 cases and 300 complaints per years requires 50,000 Euro, Vasilika Hysi, Albanian Helsinki Committee, Tirana, 14 September 2006. 75 Interview with Dr. Interview with Ariel Como, Albanian Rehabilitation Centre for Victims of Torture, Tirana, 14 September 2006. 76 Interview with Dr. Interview with Ariel Como, Albanian Rehabilitation Centre for Victims of Torture, Tirana, 14 September 2006. 77 Interview with Mr. Aldo Bumci, Minister of Justice, Tirana, 13 September 2006. 78 Lawson C.W. and Saltmarshe, D. (2000) ‘Security and economic transition: evidence from north Albania’, Europe-Asia Studies 52(1), pp. 133-148 79 Michels, R. 1915. Political Parties: A Sociological Study of the Oligarchical Tendencies of Modern Democracy. New York: The Free Press. 80 See: Bobbio, N. 1972. On Mosca and Pareto. Geneva, Droz. 81 Transparency International 1998. Annual Report Transparency International. 82 Instituto Libertad y Democracia 2007. Program for the Transition to the Rule of Law and an Inclusive Market Economy in Albania - Diagnosis of Extralegality in Albania. Final Report. November (Volume 1). Internet: http://lgi.osi.hu/cimg/0/0/9/1/2/Albania_FR_0.pdf Accessed 18 May 2008

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