Truth revelation instruments in post-communist Albania: transitional justice non-feasance in investigating communist crimes and the fate of missing persons

In recent years, several initiatives have been carried out to bring justice and unveil the truth about the challenging past as soon as possible, but these approaches serve more historical justice and truth than individual ones. Through the creation of public mechanisms, such as the Institute for the Study of Crimes and Consequences of Communism and the Authority of Former State Security Files, institutional action was meant to serve the cause of justice and truth by giving the opportunity for access to secret files to the victims and society, analysing crimes committed, identifying perpetrators, and, if possible, referring them for criminal prosecution. Law of the Republic of Albania no 10242 of 25 February 2010 `On the Institute of Studies on the Crimes and Consequences of Communism in Albania' [2010] Official Journal of the Republic of Albania 30/1013; Law of the Republic of Albania no 45/2015 of 30 April 2015 `On the Right to Information about the Documents of the Former State Security in the People's Socialist Republic of Albania' [2015] Official Journal of the Republic of Albania 88/4671. These institutions played an important role in enabling the victims and society, especially the young generation, to learn the truth about the criminal communist past, but have made vague attempts in referring perpetrators of communist crimes to the prosecution office. Such an apathetic attempt to identify and sue those responsible for communist crimes was made in 2019 when the Institute referred one criminal report against a former prison high-ranking official, who had emigrated in the '90s, to the prosecution office. Even though 4 years have passed since then, nothing is publicly known about the progress of the criminal investigations of this case.

Evaluating the Politics

The criminal investigations and trials of the perpetrators of the communist crimes would be the most important tools with a significant impact on restoring justice and truth and, especially, raising Albanian society's awareness of the scale of the communist atrocities.

Criminal justice would serve to unveil the truth, making an immense contribution to the victims' reparation, helping social reconciliation, and preventing similar scenarios from happening in the future. The scale of human violations that happened during a long repressive communist regime in Albania laid out high expectations regarding the measures to be included in the transitional legal framework. The real steps undertaken to prosecute and punish communist crimes were far from the expectations.

Albanian society has failed to punish the perpetrators of the past communist atrocities. When crimes of the past are not properly prosecuted, doubtlessly truth becomes a victim on its own. The failure of Albanian's society to prosecute and punish communist crimes was also confirmed in 2006 by the Parliament. The Albanian Parliament made a "mea culpa,¹' admitting that the fall of the communist regime in Albania was not followed by an investigation of the crimes committed by that regime, especially since the perpetrators of these crimes were never seriously confronted with justice, and no public apology was sought to the victims of the communist genocide. Law of the Republic of Albania no 7514 (n 47) art 4.

Nowadays, many victims and perpetrators are no longer alive, making it difficult or impossible to initiate criminal proceedings. Even though the crimes committed by excommunist officials were not prosecuted and punished, this process still should not be considered impossible to achieve. The prosecution system in Albania should play a more proactive role in pursuing communist crimes through its discretion. Victims of communist violence and the state-mandated institutions created to provide evidence of the communist crimes have the right, and, at the same time, the duty to refer every identified case to the criminal prosecution office. The justice system at the domestic and international level can make a valuable contribution in this direction.

In Albania, since the criminal trials did not produce the desired effect, the social demand to analyse, study, and provide evidence of communist crimes, as well as their consequences, with any appropriate means, is imperative. The Parliament estimated that the awareness of the Albanian public opinion, especially of the young generation, about the inhumane crimes committed by the communist regime was quite poor. Resolution of the Parliament of Albania no 11/2006 (n 47) art 5. Therefore, the Parliament invited studies of a historical character to enable an objective verification of the history of Albania during the communist dictatorship, as well as called for the drafting of a national strategy for eliminating the consequences of half a century of totalitarianism in Albania. The evaluation of the communist period and the communist crimes should not be left only to the judgment of researchers and historians, but it needs timely intervention from the state through other policies, like public access to the files of the former state secret service, and the study of communist crimes to raise historical awareness of the bitter past. Such initiatives might serve justice and, above all, the truth. Thus, Albanian society faces the challenge swiftly seeking historical justice for the truth about the past to be transmitted across generations through collective memory and memory practices.

The Politics of Truth about the Missing Persons from the Communist Era

During the communist era in Albania, resulting from the persistent freedom infringement, more than 6,000 persons were categorised as missing. The people's disappearance under the communist regime was part of a state demonic strategy of terror, fear, and violence, punishing the political opponents or so-called "enemies of the people" even after their death and not allowing the “victims” to have a grave or informing the family members of their fates. Most of the disappearances in Albania occurred under circumstances such as a) the execution based on a court decision with capital punishment according to the law of the time, b) being killed at the state border, c) dying in prisons as a result of torture, d) dying in internment camps or medical or rehabilitation institutions as a result of slave treatment, etc., e) shootings without trial, or f) arrests and detention of the persons by secret police, then dying as a result of torture, etc. All these forms of state repression that led to the disappearance of the persons happened randomly during the period of dictatorship in Albania.

In a transitional context with a history of gross human rights violations, socio-political needs urge one to consider in which way the issue of missing persons can best be addressed. Tracing the missing people is crucial to maintaining and restoring basic human rights, supporting their families is also an act of respect for the dead. Above all, tracing the missing persons from the Communist Era stems from the Disappearance Convention. This is because the prohibition of enforced disappearance and the corresponding state obligation to investigate establish the fate and whereabouts of the disappeared, punish the responsible perpetrators, and attain the status of jus cogens in international law. This state obligation enjoys a higher rank in the international law hierarchy than other obligations arising from serious human rights violations. Inaction or refusal of the state to carry out an investigation and provide information to the relatives of the missing people about the remains of their loved ones causes great suffering and constitutes a breach of the right to life and, simultaneously, an infringement of the right to know the truth. The State is obligated to investigate every situation involving a violation of the rights protected by the international human rights instruments. If the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. Velasquez Rodriguez v Honduras (n 8) para 176.

Discovering the buried truth, identifying and finding the remains of the missing persons, and bringing the perpetrators before justice is a difficult and lengthy process. The success of it depends primarily on the institutional and political will to address this issue. The investigations into human rights abuses related to the issue of persons who went missing from the communist era should not be left up to solely the unofficial searches and exhumations by family members but should also be part of a well-resourced, state-sponsored broader strategy and policy. The domestic legal system should be capable of dealing with cases of disappearances, thereby producing concrete results. The undertaking of legal and institutional measures in this way should not be considered a result, but as a means to achieve the final goal: discovering the truth that was buried many decades ago, giving the victims due respect, and providing the families with the required support.

Overcoming the Obstacles

Enforced disappearances that happened during the period of dictatorship in Albania constitute a continuing violation of many rights under several documents of international law. The investigation of these cases represents an important obligation stemming from the Disappearance Convention. Undoubtedly, the criminal investigation of missing persons is the primary method to discover the circumstances of the disappearance, identify the responsible perpetrators, and search, find, and identify the victims. The results of the investigations might condition the legal qualification of the offence. Nevertheless, cases of disappearances resulting from a widespread or systematic attack against a civilian population during the communist regime might be qualified as crimes against humanity. This is also asserted by the Rome Statute of the International Criminal Tribunal. Rome Statute of the International Criminal Court (adopted 17 July 1998) art 7 <https://treaties.un.org/ pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&clang=_en> accessed 12 June 2023. Therefore, as previously discussed, international and domestic law makes it possible to prosecute and punish crimes against humanity, regardless of obstacles such as "nullum crimen sine lege" and "statutory limitations."

Thus, as determined by the Disappearance Convention and argued by IACtHR, even in the case that the individual responsible for crimes of this type cannot be legally punished under certain circumstances, the state is obliged to use the means at its disposal to inform the victims' relatives about their fate and whether they were killed, as well as the location of their remains. Velasquez Rodriguez v Honduras (n 8) para 181. Therefore, the state has the obligation to organise the internal legal and institutional system to respond to this obligation. From this point of view, when dealing with the issue of missing people from the communist era, the main problem to resolve is how to reach the burial places, overcoming two difficult obstacles: time and silence. The combination of these factors makes finding the remains of the missing persons very difficult. In the Albanian context, there has been a lack of information for several decades about the missing people. Such a long period creates a large challenge in collecting information and identifying the victims. Therefore, the use of traditional methods, such as the publication of the identity of the missing persons, undertaking campaigns to collect information from the public, etc., are ineffective.

The other obstacle to overcome is breaking the silence. The question arises on how to strike a balance between the right to collect valuable information about the remains of missing persons and the necessity to retrieve such information from persons who know about their fates. The concern is how to make the executioner, collaborator, or their relatives speak up and tell the truth. To achieve this goal, it will be necessary to use incentive-based approaches to have them offer information instead of allowing them to remain silent. This approach, which is currently also used in criminal law, can be a valid tool, although ethically questionable, because it can present itself as rewarding the author for the crime committed. Thus, the administrative proceedings approach may be more appropriate to be adopted. In this view, the administrative proceedings can also serve as a necessary preliminary tool for initiating the criminal investigation.

Constitutional and Legal Basis of the Missing Persons from the Communist Era

The obligation to search for and discover the remains of persons considered missing during the communist dictatorship stems from values and principles that constitute important cornerstones in Albanian constitutional architecture. From a broad legal interpretative point of view, guaranteeing the principle of justice and peace and basic human rights, like the right to life, as well as the prohibition of torture, cruel, inhuman, or degrading punishment or treatment gives rise to the state's obligation to deal with the issue of missing persons from the communist era. Constitution of the Republic of Albania (n 31) Preamble. Also, the constitution imposes the obligation to apply binding international law on the Albanian state. According to the Constitution, any international agreement that has been ratified constitutes part of the internal juridical system and it is implemented directly, except for cases when it is not self-executing, and its implementation requires the issuance of a law. ibid, arts 5, 122.

After the fall of the communist regime in Albania, the issue of missing persons resulting from state repression was not considered a priority. During the period from 1991 to 2013, there was no political and institutional will to address the issue through legal and administrative measures. The remains of the disappeared during this period were found only through the efforts and interest of the relatives of the missing people who engaged with their private moral or material resources in carrying out the complicated process of gathering information about the remains and their exhumation. Cooperation between the families of the missing persons and the state institutions, like the State Police, the Institute of Forensic Medicine, and the Prosecution Office could be traced only in the final stage of this process, that of exhumation after the discovery of the remains. The involvement of such state structures was mandatory due to the provisions of the Criminal Procedural Code, which sanctioned that where unidentified remains are found, a criminal investigative procedure must be initiated to identify the circumstances of the disappearance, the identity of the victims, the responsible perpetrators, etc. Law of the Republic of Albania no 7905 of 21 March 1995 `Criminal Procedure Code of the Republic of Albania' art 200, para 2

The first legal step in tracing the remains of the missing persons was the ratification by Albania of the UN International Convention, “On the Protection of All Persons from Enforced Disappearances,” in 2007. General Assembly Resolution 61/177 (n 16); Law of the Republic of Albania no 9802 (n 30). According to the Albanian Constitution, international law is of a higher ranking position than domestic one, providing the obligation of the Albanian state to implement international law. The Convention imposes important obligations on the Albanian state to clarify the issue of the persons who went missing during the communism period, and this responsibility lasts until the fate and whereabouts of the victims are verified. The second step was taken in 2013, fulfilling the obligation stemming from the Disappearance Convention by criminalising the offence of enforced disappearances under the Albanian Criminal Code by the Law No. 144/2013. Law of the Republic of Albania no 144/2013 of 2 May 2013 `For some additions and changes in the law no 7895, dated 27.1.1995 "Criminal Code of the Republic of Albania”, amended' [2013] Official Journal of the Republic of Albania 83/ 3526, art 2. It was only in 2015 that a state unit was established to deal with the issue of the remains of the missing persons by the Institute of Politically Persecuted Persons. The main purpose of setting up this mechanism was to create an initial database of missing persons. Another legal progress was achieved in 2018 with the ratification by Albania of the cooperation agreement between the Council of Ministers of the Republic of Albania and the International Commission on Missing Persons (ICMP). Law of the Republic of Albania no 83/2018 of 15 November 2018 `For the ratification of the cooperation agreement between the Council of Ministers of the Republic of Albania and the International Commission on Missing Persons (ICMP)' [2018] Official Journal of the Republic of Albania 172/12074. According to this act, ICMP undertakes assisting the Albanian government in drawing up the list of missing persons and their family members, thereby providing technical assistance and regularly informing the families of missing persons about the recovery and identification of the remains. ibid, art 2.

Important progress was made in 2020 in clarifying, by law, the meaning of the term “missing person from the time of communism.” Law of the Republic of Albania no 114/2020 of 29 July 2020 `For some changes and additions to the law no 45, dated 30.4.2015 ”On the right to information about the former state insurance documents of the People's Socialist Republic of Albania”' [2020] Official Journal of the Republic of Albania 154/9734, art 2, para 4. The law has given the same definition to the persons that are considered missing under communism as to those considered enforced disappeared, according to the Disappearance Convention. The clarification by the law of the notion of missing persons during communism enables an accurate identification of the victims included in this category by the public institutions in charge and serves as a basis for identifying, searching, and finding the remains of the missing people. This also enables their relatives to make requests for information or reparations to the state competent authorities. Thus, it is useful that the state authorities establish a comprehensive database of missing persons, which might provide reliable information regarding cases of missing persons and allow their families to register missing relatives and exercise their social and economic rights.

The Institute of the Politically Persecuted Persons was not the right mechanism to deal with the issue of missing persons. Considering this, the Albanian government mandated the Files Authority with the administrative investigation of the remains of the missing persons from the communist period in 2022. This state entity, together with the Ministry of the Interior Affairs, cooperated with ICMP. Law of the Republic of Albania no 72/2022 of 20 October 2022 `For some changes and additions to the Law no 45/2015 ”On the right to information about the documents of the former State Security of the Socialist People's Republic of Albania”, amended' [2022] Official Journal of the Republic of Albania 154/18649, art 10. The Files Authority has only recently established a unit to deal with the process of identification and recovery of the remains of missing persons, in addition to launching an online platform for collecting information about them.

Regardless of the legal steps taken during the 30 years of democratic development in Albania, it must be said that on the concrete level, very little has been achieved. The latest exhumation to find and identify the whereabouts of the missing persons from the communist era dates back to 2010 in places called "Mali me Gropa,” Dajti Mountain, Tirana. In 2010, the Institute of the Politically Persecuted Persons, after finding 11 plastic bags with human remains thought to have been shot during the communist regime, referred the case to the Tirana Prosecution Office. The latter has registered criminal proceedings no. 2502/2010 and started investigations for the offence provided for by article 79/dh of the Criminal Code, "Murder in other qualifying circumstances," thus sending the identified human remains to the Albanian Institute for Legal Medicine (ILM) for further examination. ILM confirmed the remains of 13 persons, while DNA identification has not yet been carried out due to the lack of technological infrastructure and the difficulties encountered in this type of procedure. Meanwhile, as it randomly happens, the investigation has been suspended until the examinations are completed. In 2018, the Prosecution Office of Fier registered an investigation for the same criminal offence based on the suspects for a mass grave from the communist period in the village of Panahor, Mallakastёr, Fier. No results are yet available from the proceedings of such an investigation, furthermore, exhumation has not begun.

Therefore, it must be said that the process of searching for and discovering the missing persons has almost stalled. No criminal proceedings related to missing persons have been carried forward or have reached the expected success. From this situation naturally arises a strong scepticism as to who will be held criminally responsible for crimes against humanity in these cases, to restore justice and truth.

Evaluation of the Policy

More than three decades after the fall of the communist regime in Albania, criminal investigations as the most effective tool to deal with the issue of missing persons did not produce any effect, thus they did not serve the cause of justice and truth. There was a lack of institutional will on behalf of the Prosecutor's Office to investigate previous communist crimes. This becomes obvious in the standing articulated by the high representatives of the General Prosecution Office who have argued that the actions carried out by former communist officials under the communist law cannot be qualified as crimes in the present time because the former communist officials acted according to the law applicable at the time. Gjergj Erebara, Albanian Prosecutor Declines to Probe Communist-Era Disappearances (Balkan Transitional Justice, 22 October 2021) The prosecutor's office also states that they have been handling very old, mostly prescribed crimes, which pose many difficulties in collecting and documenting the evidence related to this issue. As Bllaca and Pilika emphasise, they argue that the perpetrators had acted by the law and then, in force, obstructed the enforcement of the right to the truth and justice. Erinda Bllaca and Anita Pilika, The Unsolved Issue of the Missing Persons in Albania: A Comparative Study (Institutit per Aktivizem dhe Ndryshim Social 2021) 21.

The lack of institutional will is expressed not only from the point of view of these scholars, but it is also from the point of view of the formal legal aspect. For about 30 years, the Prosecutor's Office has not been organised in such a way that a specific structure by this entity might handle the investigations of communist crimes. On the other hand, there is also a lack of will on behalf of the Parliament of Albania, which monitors the activity of the Prosecution Office. During these three decades, this issue has been mentioned in only a few formal positions of mainly right-wing political forces in the Albanian parliament. In no case has the Parliament of Albania exerted enough pressure and demand for accountability towards the Prosecutor's Office. The Albanian Parliament has not considered utmost priority in providing the Prosecutor's Office with adequate human resources and the needed financial support to intensify investigations on crimes of communism. Intensification of investigations might produce concrete results, helping to clarify and restore justice for the crimes of communism and restoring basic human rights and respect for the victims. The EU progress report of 2020, and those from the 4 years following, also reached the same conclusion, stating that "the Prosecutor's offices failed to conduct any `ex officio' investigation on missing persons, the resolution of cases has remained low partly due to the lack of capacities and resources and political will is needed to establish an efficient cooperation mechanism among relevant institutions and to enhance public awareness" Commission Staff Working Document, Albania 2021 Report: Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, 2021 Communication on EU Enlargement Policy, SWD/2021/289 final, 28

Throughout such a long period, no legal policy has been adopted to deal with the issue of missing persons from the communist period, leaving the relatives of the victims without protection and, thus, not serving the cause of justice and truth. Regardless of some limited measures taken in 2015, it was only in 2022 that the Albanian legislation mandated the Files Authority to administratively investigate this heavy burden of the past. By the end of 2023, the authority had just started the first administrative investigations in search of the graves of the missing people in Kolonje. `Vrasjet ne kufi, AIDSSH nis hetimin e pare administrativ per te zhdukurit ne Kolonje' (Authority of Information on Secret State Documents of Albania, 2023) According to the head of the Files Authority, about 107 possible burial sites of missing persons had been identified through the end of 2023, but no concrete exhumation process had yet begun. Najada Pendavinji and Erald Kapri, `Institutional Obfuscation Frustrates Search for Communist-Era Victims in Albania' (Balkan Transitional Justice, 19 September 2023) In addition to the above-mentioned measures, political will and endorsement are required to provide the File Authority with the necessary financial and human resources to effectively coordinate activities related to the investigation and identification of missing persons from the communist era. The cooperation between the above-mentioned authorities and the ex-communist officials or other persons who might give valuable information on the remains of the missing persons has not yet been properly addressed by the law.

Despite these measures taken, there are no tangible results for the remains of 6,000 missing persons, leaving the truth about their fate buried and converting the issue into a serious concern in the framework of guaranteeing human rights. The failure to investigate and punish communist crimes as serious violations of human rights can lead to international responsibility of the State because of the lack of due diligence to respond to them as required by the international law-binding instruments. The issue of missing persons from the communist dictatorship in Albania remains an open process that calls for justice, accountability, and truth.

Therefore, it is a priority for Albania to adopt legislation that includes provisions protecting the rights of the families of missing persons from the communist era. The Prosecutor's Office ought to guarantee an adequate number of prosecutors entitled to follow the investigations of secret gravesites and of locations where crimes were committed in collaboration with the other institutions in charge of dealing with this issue. Sufficient resources should be allocated to ILM for the examination and identification of missing persons. Incentive-based approaches should be adopted and further utilised by the institutions in charge to gather relevant information from the people involved. The Files authority should be endorsed with the necessary financial and human resources to handle and coordinate effectively activities related to the investigation and identification of all missing persons from the communist era.

Conclusions

The right to the truth about serious violations of human rights is not closely bound to the precise wording of particular treaties, but it was vindicated by case law, soft law, and doctrinal contributions. The clear linkage between the right to the truth and the preservation of human dignity makes it stand on the threshold of a legal principle and a claim. Knowing the truth “to the fullest extent possible” is extremely important to help communities understand the causes of past atrocities. Unveiling the truth is an obligation, not an option, for states where violations of human rights have been committed. In a transitional context, the right to the truth offers the victims and society a tool to instigate truth-seeking processes and demands from authorities to implement effective measures to guarantee it. If implemented properly, these processes can play a determinant role in establishing the basis upon which justice can be executed.

Albania has experienced a painful past under a criminal communist regime that caused serious violations of basic human rights, a toll of many victims, a significant part of whom are still missing. The transition from a totalitarian (communist) system to a democratic one for Albania was a difficult and complex process due to the lack of resources and, often, the will of the new political elite to carry out institutional reforms in a sustainable manner. During these 33 years of democratic developments in Albania, crimes committed by the communist regime were never investigated, the perpetrators of these crimes never seriously confronted justice, and no public apology was sought for the victims of the communist genocide. The instruments of criminal law in Albania did not produce any “legal truth” about the communist crimes.

The communist system's ideology of violence and terror extended the demonic policy of punishment for the so-called "enemies of the people" even after the death of the person, not allowing the possibility for the “victim” to receive a grave or for the family members to know about the location of their relative's grave. For about three decades in Albania, there was no legal policy dealing with the issue of missing persons during the communist period. The process of finding their remains has been taken over by the family members themselves. It was only in 2022 that the Albanian legislation assigned responsibility to the Files Authority to administratively investigate this heavy burden of the past. Safeguarding the rights of families of the missing persons is fundamental to upholding human rights and the rule of law in post-communist Albania. Until now, there have been no tangible results about the remains of 6,000 missing persons, leaving the truth about their fate buried and turning it into a serious concern in the framework of guaranteeing human rights. The issue of missing persons from the communist dictatorship in Albania still remains an open process that calls for justice, accountability, and truth.

right law albania communist

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