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Commentary: An overview of how Albania is responding to the COVID-19 crisis

FairTrialsAdmin - May 5, 2020 - COVID-19 Updates, Commentary, New criminal offences, Remote Justice, Rule of Law, Court closures, Prisoner releases

This post was written by Megi Reçi, Civil Rights Defenders, Tirana, Albania.

On 24.3.2020 the government declared a state of Natural Disaster for 30 days. On April 21 the government requested to extend the state of natural disaster until 23 June. The request was later approved in Parliament.

Amendments to the Criminal Code

On 16 April, the Criminal Code was changed and prison sentences were introduced with regards to the COVID-19 situation. These changes, which include prison sentences of 3-8 years, can be issued in cases of violation of preventative measures, when they had serious consequences for the health and life of the population. On the other hand breaking quarantine when the person has been mandated to self-isolate by health authorities risks a 2-3 year long prison sentence. It was positive that milder sanctions were approved in comparison to the initial draft proposed by the government which prescribed prison sentences of up to 15 years. However the sanctions remain very harsh, and their proportionality is in question. Negligent medical treatment in the Criminal Code is sanctioned with a fine or prison sentence up to 5 years, when it caused serious health damage, risked the life or caused the death of the person. When this caused HIV infection, it is sanctioned with 3-7 years in prison. Therefore, the doctors, despite being more informed on the risks of infection and having the knowledge and means to avoid it, are sanctioned less than a regular citizen.

Most importantly, the Constitution of Albania does not allow for an accelerated procedure of approval for laws that are to be passed with qualified majority, such as the Criminal Code. This Code is a law of crucial importance and its amendments need to be based on reliable research, and should be subject to public and parliamentary debate and consultations with civil society and other groups. In our view, the amendments of such important laws in violation of the procedures provided in the Constitution, when Courts and Parliamentary scrutiny is lacking or limited sets a dangerous precedent. In terms of Parliamentary scrutiny, on 16 April, there were 24 normative acts and legislation pieces on the agenda of the parliament, amongst which were also the changes to the Criminal Code. To justify the accelerated procedure, the amendments to the Criminal Code on infectious diseases were included in the agenda of the Parliament together with other amendments concerning domestic violence which were previously proposed and consulted for months. 30 human rights CSOs, including Civil Rights Defenders have reacted and considered the timing to be accelerated and insufficient.

In the Western Balkans, namely in Bosnia and Herzegovina and Kosovo, there were already cases in which the Constitutional Court ruled against some restrictive measures taken by the government concerning lockdown measures. In Albania, these measures are impossible to challenge at the moment as the Constitutional Court is not functional due to the high number of vacancies created as a result of the vetting process that is ongoing in the justice system. These provisions are not temporary and they will very likely remain in the Code.

Additionally, these sentences do not respond to an urgent social need, as there were fines in place for lockdown violations and there was not any high public disobedience. There were no arguments provided on why the administrative sanctions (fines) that were in place were not sufficient and criminal sentences were needed.

Finally, given the pandemic crisis, it is important to flag that states around the world are advised to reduce the number of prison population due to the added risks of a COVID-19 outbreak in confined spaces. In Albania the first cases of infection with COVID-19 in prisons have been reported. Meanwhile the government earlier in March, decided to release 600 prisoners temporarily, on the other hand, in April additional prison sentences were introduced.  Another contradiction is that the government indicated that all fines issued so far for violations of COVID-19 measures would be waived, but warned that criminal sentences would be imposed.

Temporarily release of around 600 prisoners

The government decision of 23.3.2020 provided the permission for temporary stay at home for 3 months and it benefits only those who have been sentenced through a final decision of the court, not pretrial detainees, thus also leaving out even juveniles in pre-detention. The categories that benefited from this decision were: prisoners that have up to 3 years of prison sentence left and have not committed grave offences (there is a list of offences who are excluded from benefiting from this decision); also prisoners who have up to 5 year of prison sentence left, are 60 years-old or older who suffer from chronic diseases. The period of staying at home will be considered as part of the sentence.

Inmates have been provided the possibility to meet family and lawyers via Skype. Watchdogs have requested to be provided the opportunity for them to have meetings with inmates on Skype as well, to be able to receive complaints and monitor externally. No such measures has been taken yet.

The work of the courts is suspended

As of 10 March the work of all courts is suspended until the end of the pandemic. There are some exceptions on which the courts’ activity can to continue. Some criminal cases that will not be suspended are: the validation of the arrest in flagrance or detention, reviewing of security measures of "prison arrest" or "house arrest"; cases concerning detained or arrested juveniles; urgent cases regarding important evidence. It is positive that this allows lawyers to access courts to request alternative measures to detention. Public access to trials is limited.

Remote Justice

When possible the lawyer and arrested or detained person participate in the trial remotely, through audio visual means. As of 6 April, some online hearings are conducted from the Special Court against Corruption and Organised Crime. It is to be seen how these measures will be implemented in the criminal justice system. Concerns are being raised with regards to the violation of the cross examination principle e.g when questioning witnesses. Also there is a possibility for decisions taken from courts during this period to be challenged later and declared invalid because none of the Codes of Procedures have any provisions to support this government decision. Similar concerns are being raised in the regions as well. Namely the Bar association of Serbia invited lawyers to boycott these online proceedings, since they are in violation of the rule of law.

Reallocations in the state budget

Many budget lines were reallocated to the Ministry of Health. The Ministry of Justice budget on state provided legal aid was affected and reduced. For years the main legal aid providers in the country have been CSOs supported by international donors.

Derogations from ECHR

As of 1 April, the Government informed the General Secretariat of CoE on the necessity to derogate from certain obligations under the ECHR. The articles concern private life, freedom of movement, right to property, right to education and public assembly, therefore there are no direct implications to criminal justice at the moment, but it is worth mentioning as an unusual measure. No similar measure is taken in any of the EU countries who have the highest number of cases and fatalities with COVID-19 meanwhile such derogations are applied from countries like Albania, Serbia, North Macedonia, Romania etc.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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