Access to justice is an important element of the rule of law. It enables individuals to protect themselves against infringements of their rights, to remedy civil wrongs, to hold executive power accountable and to defend themselves in criminal proceedings. This handbook summarises the key European legal principles in the area of access to justice, focusing on civil and criminal law.
This handbook provides an overview of key aspects of access to justice inEurope, with specific reference to relevant rights provided in the Council of Europe’s European Convention on Human Rights (ECHR), as interpreted by the European Court of Human Rights (ECtHR), and the Charter of Fundamental Rights of the European Union, as interpreted by the Court of Justice of the European Union (CJEU).
Access to justice is not just a right in itself but also empowers individuals toenforce other rights. This handbook is broad in scope, covering criminal andcivil law. Existing FRA-ECtHR handbooks on European law relating to asylum, borders and immigration and to the rights of the child contain analyses onaccess to justice by asylum-seekers and children; therefore, these areas arenot covered in this handbook. The handbook is designed to assist legal practitioners who do not specialise inaccess to justice matters, serving as an introduction to key issues involved. It isintended for lawyers, judges, and other legal practitioners, as well as for personswho work with entities that deal with the administration of and access tojustice, including non-governmental organisations (NGOs) involved in litigation.
The handbook can also be used for legal research or public advocacy purposes.It is designed to permit practitioners to refer directly to specific sections/topicsas required; it is not necessary to read the handbook as a whole. The Furtherreading Section lists specialised material that may be of interest to those seekingadditional information on a particular issue. The relevant laws of the Council of Europe (CoE) and the European Union (EU)are presented as they apply to each topic. There is, however, substantialoverlap between the access to justice rights set out in the ECHR and in theEU Charter of Fundamental Rights. The Charter explicitly recognises that, whereCharter rights correspond to rights in the ECHR, they are to be given the samescope and meaning. Much of the ECtHR’s case law can therefore be consideredrelevant when looking at the scope and application of Charter rights. EU lawshould be presumed to be consistent with ECtHR case law unless explicitlystated otherwise. CJEU case law is referred to where relevant jurisprudence isavailable, providing alternative sources for access to justice rights and, moreimportantly, demonstrating how the two legal orders work in parallel. Many ofthe cited CJEU judgments were delivered in the course of a preliminary ruling
ARCT Police Monitoring:
• The case of brutal beating of Altin Bamllari and his son, from police officers was one of the cases which was publicly addressing police brutality during 2016.
• A young person with disabilities was beaten by two police officers, the case was reported by the father of the invalid boy G.O, who has filed a complaint in the Tirana’s prosecutor’s office.
• Another reported cases of police brutality is registered in Lezha, where a police officer beats a driver who was arguing with him about him being stopped without any reason.
• A 54-year old man (Fadil Hoxha) dies in the premises of Lushnja police commissariat. He was suffering heart problems, while kept in the police commissariat.
During 2016, ARCT has confirmed its presence with the monitoring component in police commissariats and prisons. The process of monitoring has produced recommendations, followed by actins by prison authorities and cases brought before prosecution.
Major issues with regards to detention remain:
Despite measures in terms of the improvements of various aspects, the overall situation is missing a holistic approach towards multi sectoral prison reforms. Problems with the staff performance, knowledge and professionalism remain a great concern as it jeopardizes the existing standards. Such missing approach of the system is found in the offender management (vs. overcrowding, lack of basic services, corruption), rehabilitation (vs. recidivism), staff learning systems, active security (vs. disciplinary measures). In the ARCT alternative report “Prisons as progressive punishments”; the tendency of the increased number of violence and inter prisoner violence remained an issue which raised concerns. during the reporting period, there was an average of 5850- 6091 detained population of whom 49% were in pretrial and 51% in detention.
• Overcrowding in prisons was a concern throughout the year, ranking up to 23% more than prison capacities. The material conditions remain quite poorly maintained and managed, no major improvements are registered. Some information from the GPD reported that costs for a detained prisoner go from 350-370 euro per month. As of 2016, the prison system has 164 convicted with life sentences, 42 convicted women, 14 children, 11 over the age of 70.
• During 2016, the ARCT has collected over 935 interviews with detainees, of whom 456 in pre trial and 479 in prisons. The reported cases of violence happening during arrest, transportation in police commissariats, in police is illustrated as following: 176 interviewees reported police physical violence during arrest, other 97 during transportation to police commissariats, and 103 in police commisariats. 169 out of 935 interviewees reported pschological violence while in police commissariats.
• During 2016, in the overall prison system there were 28 inter-prisoner violent incidents, 9 suicide attempts, 6 self harm tentative, 4 hunger strikes.
• A fire in Shen Kolli caused the death of a prisoner, Flamur Sula (25), and 5 wounded prisoners. This incident put in question the level of security in this institution. An administrative case was initiated by prison authorities.
• A case of violence in the Shen Kolli Prison was reported, based on a prisoner’ complaint against violence in the Shkodra Police Commisariat, and the lack of documentation of the violence according to the Istanbul Protocol in this institution. The case was publicly denounced by ARCT and other monitoring authorities (spetember, 2016).
• A prisoner, Lili Dulaj (40), was shot from the outside of the prison. He was in the Vaqarri prison. The case shows big concerns regarding the level of security in various Albanian prisons. The same is the situation with Elbasani pre trial detention centre, which is located in an area where the institution may be at high security risk. Actually, one of the life sentenced (4 tentative escapes) prisoner, Admir Tafili is kept.
• A prisoner, Fatmir Myftari, condemned with 20 years imprisonment hanged himself in the Peqini high security prison.
• A hunger strike was initiated by 20 prisoners in Korca High security prison in June 2016. Hunger strikes were reported in Shen Kolli, Peqini and Rrogozhina.
• A case of violence in pretrial detention was denounced by a prisoner in Jordan Misja pretrial facility. He complained against security prison staff for violent acts and abuse. The case was publicly denounced in an investigative TV show and was investigated by ARCT (June, 2016).
• A repeated concern remained the management of 120 prisoners with mental illnesses, condemned by courts with compulsory treatment. The current prison infrastructure in Zaharia Special Institution calls for specific attention from prison authorities. All inmates face appalling detention conditions, which if compound with lack of treatment and other recreational and rehabilitation activities may easily amount to torture, inhuman and degrading treatment, also in clear violation of Art.3 and Art.14 of the ECHR.
• During 2016, the ARCT has emphasized that the major part of pre-trial detainees placed in overcrowded cells find themselves there because of the recent policies of the government to roughen criminal punishment for electrical power thieves and for traffic offenders. On the grounds of registers inspected by NPM in police stations, the majority of persons placed in security rooms, as well as those transferred, have been detained/arrested for offenses such as: driving without a driver’s licence (the majority of persons part of this category were juveniles); drunk driving; illegal electricity supply line; domestic violence, etc. The increase of the number of persons detained/arrested for the first three offenses shows that a very important factor of overcrowding is the roughening of criminal policy.
Torture Case in Fieri Detention Centre
ARCT received a phone call, requesting help from two prisoners: Bledar Panajoti (mentally ill) and Adriatik Meni, claiming that they were beaten by prison police. A team of monitors went to visit this facility and we met with these two prisoners. ARCT has identified signs of plastic and metal handcuffs in their hands and their legs (as means of restrains) - particularly identifiable to one of the prisoners. When asked, Bledar Panajoti showed wounds made by heating him with a bunch of plastic rods (the ones police uses to handcuff) in his back. The monitoring team asked prison authorities, we were presented the service report, and how these two inmates were isolated. We also asked whether there was a documentation by the medical staff of the institution regarding the wounds and their mental situation, but the medical file did not show anything. We also asked whether the medical staff filed the format ARCT has introduced re:Istanbul protocol; yet no documentation.
ARCT has presented a complaint to prosecutor’s office with accusation of a potential case of torture considering their mental problems.
IRCT adopts Mexico Consensus at end of 5th General Assembly and 10th Scientific Symposium: Firm call for states to fulfil victims' right to rehabilitation
The International Rehabilitation Council for Torture Victims (IRCT) an organisation consisting of 152 centres providing annual rehabilitation services to an estimated 100.000 victims of torture in 74 countries, has concluded its fifth General Assembly on 9 December 2016 with a Resolution, titled Mexico Consensus. In this consensus all members of the organisation demand that all countries comply with their obligations to prevent and prosecute torture, provide reparations to the victims, and increase the funding available to fulfil victims’ right to rehabilitation.
The Mexico Consensus includes a series of conditions, under which States must provide victims with access to a choice of rehabilitation services. Among these conditions are the inclusive and multidisciplinary nature of services and the participation of the victim in decisions concerning the rehabilitation process. At the same time, the IRCT General Assembly registered its deep concern for the lack of legislative, public policy and other measures necessary to provide victims with adequate rehabilitation, including notably declining funding from all quarters, in a context, in which, as a result of war, conflict and the action of perpetrators, there are millions of torture victims with a completely unfulfilled right to rehabilitation in a great majority of countries in the world, and their numbers continue to grow. Holistic rehabilitation to support these victims is not only a legal and moral imperative, but it is also an integral component of eradicating torture, in concert with other actions to prevent torture, fight impunity and provide redress.
The Albanian Rehabilitation Centre for trauma and Torture is supported by an institutional fund from the OSF for a period of 2016-2017. The program is based on the ARCT Strategy 2016-2018 and it is covering main areas of functioning. From its beginning in 1994, ARCT has steadily grown to a consolidated anti-torture organization of regional acclaim, introducing three main programs: rehabilitation and documentation, advocacy. Since 2007, onwardsARCTexpanded the component of prevention of torture thereby introducing the litigation component under the legal and training program. In the course of its activities, ARCThas developed the capacity to document cases of torture and to rehabilitate torture survivors through use of findings to pursue justice for torture victims, victims of hate, and victims of justice system in Albania through the provision of forensic and psychological treatment.
These activities have evolved into three main programs:
· Rehabilitation and Documentation:This program entails provision of medical and psychological care for victims and survivors of torture, counseling for victims of torture, andforensic documentation for litigation purposes. Combining proper investigation of crimes motivated by hate and biases with the rehabilitation and documentation was currently introduced by ARCT through national campaigning, training and capacity building for police and youth and community engagement. The newly started 5-years program on the stress management for professionals of the primary health care system remained a positive approach to consolidate the component of rehabilitation
· Access to Justice: Through the programme, legal advice for victims and survivors of torture is offered, public interest litigation conducted, capacity development provided for stakeholders and review of policies and legislation. This component is an ongoing support of the Open Society Foundations. An added values was considered the annual support of the Civil rights defenders, which helped in consolidating the complaint system for the mentally ill.
Advocacy and Communication: Dissemination of information and awareness creation on torture targeting the public is one of the functions that this programme fulfills in addition to advocacy campaigns against torture and related atrocities, at the national, regional and international level. This component was consolidated through annul support coming from various donors, both local embassies (Dutch Embassy, the US Embassy and international donors, such as the Austrian Development Aid.
UNICEF supports ARCT to in monitoring judicial decisions in relation to disadvantaged children with Commissioner for Protection from Discrimination
ARCT through this programme proposes to support the Commissioner for Protection from Discrimination to strengthen their role in identifying diverse areas of law application where children, and particularly certain categories of children face discrimination (whether direct or indirect), or inequitable outcomes (whether intended or not intended). The Commissioner for Protection from Discrimination is a relatively new public oversight body, established in 2010. While at first, the Commissioner focused in reviewing complaints by the citizens for alleged discrimination, the Commissioner gradually moved towards initiating more and more ex officio cases and now the institution is aspiring to engage in some more in-depth monitoring and sectoral review to point out not just individual cases but rather more pervasive forms of discrimination.
This goes in line with various recommendations by regional or international bodies, regarding the strengthening of the oversight role of the Commissioner for Protection from Discrimination, stated in the Concluding Observations of the Human Rights Council and the 2ndUPR on Albania, as well as in the EU progress report on Albania.Section 2.2. of said report states the necessity to build sufficient and solid anti-discrimination case law.While the staff of the Commissioner are now more seasoned professionals and have sharpened their “eye” in uncovering discrimination, the review of judicial decisions is an exercise that will take place for the first time and the institution still needs the added support of a civil society organisation that has engaged longer in monitoring exercises and applies more flexible management and review expertise.
TIRANA / GENEVA (12 December 2016) – A United Nations expert group today called on the Albanian Government to adopt “a comprehensive State policy which fully recognizes past crimes, including enforced disappearances, and adequately deals with all aspects related to truth, justice, reparation, memory and guarantees of non-repetition.”
“Albania is yet to come to terms with the painful legacy of the gross human rights violations committed under communism,” said a delegation of the UN Working Group on Enforced or Involuntary Disappearances at the end of an eight-day official visit to the country*.
While commending the Albanian Government for a number of positive steps, human rights experts Houria Es-Slami, who currently heads the Working Group, and Henrikas Mickevicius, underscored that enforced disappearance cannot be considered as an issue of the past: “It is a continuous crime until the fate and whereabouts of the disappeared person is clarified.”
“There is still the need to bring truth to the families of all those who went missing under the communist dictatorship, and who keep searching for their loved ones, including by thoroughly investigating all suspected burial sites,” they said.
The experts also drew attention to the issue of judicial accountability: “While new cases of enforced disappearances are currently not been reported, and legislative steps have been taken to prevent the occurrence of enforced disappearances in the future, most of the crimes and gross violations of human rights committed in Albania under communism remain to be investigated and punished.”
- Lista e emrave qe kane Torturuar
- MEPs discussed Draft Resolution on Albania
- Antologjia e plageve nen terrorin komunist
- Si i fshihte Sigurimi të vrarët pa gjyq që mbeteshin pa varr. Një rrëfim nga Themi Bare
- Strategic litigation Forum
- Ligji për Dëmshpërblimin e ish të Dënuarve Politikë
- Dekoratat qe mban Enver Hoxha
- Denial of Memory: It is Time for Albania to Confront Its Communist Past
- Book on Kosovo Refugees
- Shqiperia 1945-1990 Diktatura e Proletariatit
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