Réserves et Déclarations pour le traité n°005 - Convention de sauvegarde des Droits de l'Homme et des Libertés fondamentales

Nature de la déclaration : Déclarations, Dénonciations, Dérogations
Situation au 16/11/2019

Albanie

Dérogation consignée dans une Note Verbale du Ministère des Affaires étrangères d'Albanie, en date du 4 mars 1997, enregistrée au Secrétariat Général le 10 mars 1997 - Or. angl.

[Note du Secrétariat : Le texte de la dérogation n'est disponible qu'en langue anglaise.


" The Ministry for Foreign Affairs of the Republic of Albania presents its compliments to the Secretary General of the Council of Europe and, referring to the content of Article 15.3 of the "Convention for the Protection of Human Rights and Fundamental Freedoms", has the honour to communicate as follows :

I. In compliance with Article 16 of Law N° 7491, dated 29.04.1991, "On Principal Constitutional Provisions", on the proposal of the Government, the People's Assembly of the Republic of Albania took the decision to declare a state of public emergency. Such a situation will be general, covering the entire territory of the Republic of Albania. It started from March 2nd, 1997, 17.35 hours, and will continue up to the moment of the full reinstatement of constitutional and public order.

II. The imposition of the state of public emergency was forced because of the very extraordinary situation that was created in recent days in Albania. Some forces, making use of the protests and the despair of citizens who lost their money from the failure of financial pyramid schemes, organised groups of terrorists to perform violent actions. Without organising peaceful gatherings, these groups violated the law, the constitutional order, the life of the citizens, institutions and the territorial integrity of the country, creating thereby conditions to plunge Albania into a civil war. Being faced with these attacks of extreme violence, the police forces have preserved self-control, by taking only defensive positions and making no use of firearms, which avoided the prospect of a conflict with unpredictable consequences. A few days later, the situation had become extremely complicated, and reached a climax at the moment when the imposition of the state of emergency was being discussed.
Though the Government made a proposal, the People's Assembly, after a wide and public discussion, with the intervention of the President of the Republic, refused the proclamation of a public emergency and ordered the temporary placement of some army troops to help the police forces. With a view to having a dialogue and awaiting the response of the protestors, the Government resigned.
On March 1st, 1997, a communist armed rebellion broke out in Vlora and adjacent regions organised by the former Albanian communists and the former Albanian secret police, in collaboration with foreign secret services. Terrorist groups attacked the Southern cities to take power by force of arms. The target of their attacks were innocent people, municipalities, and the headquarters of the police; jails were broken and ordinary criminals and killers were armed, hundred of thousands millions of Leks were robbed from the banks; the houses of citizens and the shops of the businessmen were attacked. The clear aim was to terrorise the population, to paralyse and to take over power by force.

III. The process of proclamation of public emergency was carried out in full conformity with Albanian constitutional law, applying at the same time well-known international standards.
The state of public emergency was imposed only at the last moment, when it was judged that all possible ordinary means to re-establish the previous normal situation were exhausted. Law N°. 8194, dated 02.03.1997 "For the state of public emergency in case of grave infringement of the Constitutional and Public Order", Article 1, provides : "The State of Public Emergency in Case of Grave Infringement of the Constitutional and Public Order is considered such a situation when in the Republic of Albania or in some of its own parts, attempts are being made to violently overthrow the constitutional order, or the activity of State institutions is violently interrupted, when army and munitions deposits of Armed Forces, the factories of their manufacturing, as well as the State institutions in capital and districts are attacked, and when due to the criminal offenses against public order and security, the economic life and individual freedoms are gravely violated".
The procedure for the imposition of such public emergency followed that prescribed by the Article 16 of Law N°. 7491, dated 29.04.1991 "On Principal Constitutional Provisions", and Law N°. 8194, dated 02.03.1997, which respectively provide :

"The People's Assembly has these main competencies : ..... to impose ..... the state of public emergency ....." (Article 16.4);
"The state of public emergency is proclaimed through a decision of the People's Assembly ...." (Article 2).

The People's Assembly convened at a regular session and in full composition adopted that decision. In this case, no legislation, less still, constitutional changes, were made; only a legal act was approved in application of our Constitutional law "For the Human Rights and Fundamental Liberties", so much appreciated by experts within and outside the country.

IV. According to the Law N°. 8194, dated 02.03.1997 "For the State of Public Emergency in Case of Grave Infringement of the Constitutional and Public Order", in the event that the state of public emergency is announced, a regime of special measures is to be established. The Council of Defence lead all State activity to be aimed at dealing with the state of public emergency. Under that state of public emergency, the Republic of Albania took several measures derogating from its international obligations. Those derogations are made to the extent strictly required by the exigency of the situation, not inconsistent with our constitutional law "For the Principal Constitutional Provisions", nor with international treaties to which the Albanian State is a party, in particular the "Convention for the Protection of Human Rights and Fundamental Freedoms" and the "International Covenant on Civil and Political Rights". They were made only for a restricted period of time. These derogations consist of restricting some human rights and fundamental freedoms of individuals. With regard to that issue, Article 41 of Law N°. 7692, dated 31.03.1993 "For the Human Rights and Fundamental Freedoms", provides that "The exercise of some specific rights may be temporarily restricted by law in a situation of national emergency or war, with the exclusion of the rights provided for in Articles 1 (right to life) ..., 3 (abolition of torture), 6 (no enforcement to confess one's guilt), 19 (freedom of conscience and religion), 25 (equality before the law), 39 (judicial restitution of the right), and 40 (guarantee of a fair trial)".
According to the Law N°. 8194, dated 02.03.1997 "For the State of Public Emergency in Case of Grave Infringement of the Constitutional and Public Order", as well as the Law "On Some Measures in the Context of the State of Emergency", the specific restrictions on human rights and fundamental freedoms, entailed by these derogations from our international legal obligations, are as follows :

1. All armed rebels must hand over arms, munitions and explosives by March 3, 1997, 14.00 hours. After this deadline, the armed rebels in the battlefield will be shot without warning (Article 1).
2. All the gatherings in public places are forbidden (Article 6)
3. All activities of political, sport, cultural or trade union nature are forbidden (Article 6).
4. The free movement of people is forbidden during defined hours of the day (between 20.00 and 07.00 hours) (Article 7).
5. Illegal gatherings in public places shall be dispersed. In the event that it is impossible to carry out such dispersal by other means, the police units are entitled to use tear-gas, as well as firearms, to the extent indispensable to carry out their own duty according to the law (Article 6).
6. Limits are imposed on the freedom of press and information. Publication and distribution in the press and broadcasts on the radio of reports which stir up and call for violent actions against national security, the constitutional law, public security and the life of the individual are prohibited. Daily press and media are obliged to publish the full text of the official reports which are directly related to the state of emergency. Press organs are obliged to obtain an approval, prior to sale, of the material intended to be published, from the local staff responsible for execution of the state of emergency. The local staff has the right to suspend any publication which violates this provision (Article 4).

The imposition of restrictions on the exercise of freedom of speech and information was due to the fact that, besides the proclamation of the state of public emergency, in the creation of unrest an inciting role was played by a part of the local and foreign press. The press organs and the mass media, basing themselves on unconfirmed sources of Albanian reporters, gave false information and influenced psychologically groups of individuals to undertake destabilising actions. In this situation, the Albanian authorities, aiming to take full measures to prevent the deepening of the unrest and to calm down the situation, decided to impose some specific restrictions on the press.
Concerning the content of the restrictions, we have to emphasise that to this extent we do not prohibit the freedom of the press. On the contrary, even in cases when other freedoms are forbidden or suspended (gatherings), press organs or those of mass media can generally publish in a normal way, being subjected only to some procedures, rules or partial restrictions, as mentioned above. Foreign journalists are free to travel throughout the country. The foreign press is not subject to the above-mentioned restrictions.
In the imposition of these restrictions, and in their content and extent, all the provisions of the Albanian Constitutional Law "For the Human Rights and Fundamental Freedoms", have been strictly applied, which in its second Article envisages : "The freedom of expression may not be violated. Any prior censorship is prohibited. No law may be enacted to restrict the freedom of speech, press or any other mass media, except in those cases where the protection of children's interests or the lives of people are concerned. Everyone enjoys the right to freely express his opinions by speaking, writing or any other means of dissemination. The right to information may not be denied to anyone. The exercise of these freedoms and rights may not be restricted, except in those cases prescribed by law, which constitute necessary means in a democratic society in the interests of national security, territorial integrity, public safety and order, or for the prevention of crime, for the protection of health or morals, the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary". Supporting the content of our legislation, we can mention here the content of the European Convention on the Protection of Human Rights and Fundamental Freedoms, Article 10, which Albania ratified in August 1996.

The Ministry for Foreign Affairs kindly requests the Secretary General of the Council of Europe to consider this explanatory note on the Albanian situation as a formal document.

The Ministry for Foreign Affairs of the Republic of Albania will inform the Secretary General of the Council of Europe about other future developments."
Période couverte: 10/03/1997 - 24/07/1997
Articles concernés : 15

Retrait de dérogation consigné dans une Note Verbale du Ministère des Affaires étrangères d'Albanie, en date du 26 juillet 1997, enregistrée au Secrétariat Général le 24 octobre 1997 - Or. fr./alb.

Le Ministère des Affaires étrangères de l'Albanie présente ses compliments au Secrétaire Général du Conseil de l'Europe et, sur la base de l'article 15.3 de la Convention de sauvegarde des Droits de l'Homme et des Libertés fondamentales, a l'honneur de l'informer que l'Assemblée Populaire de la République d'Albanie, en adoptant la Loi no. 8225 du 24 juillet 1997 "Sur la levée de l'état d'exception dans la République d'Albanie", a décidé de mettre fin à l'état d'exception sur tout le territoire du pays. A partir de cette date, toutes les mesures prises en application de l'état d'exception cessent d'être en vigueur.
Période couverte: 24/07/1997 -
Articles concernés : 15

Déclarations consignées dans l'instrument de ratification de la Convention déposé le 2 octobre 1996 – Or. angl.

La République d'Albanie déclare reconnaître la compétence de la Commission européenne des Droits de l'Homme pour recevoir les requêtes de toute personne physique, toute organisation non-gouvernementale ou tout groupe de particuliers, qui estime avoir été victime d'une violation des droits reconnus dans la Convention de sauvegarde des Droits de l'Homme et des Libertés fondamentales, ainsi que dans ses Protocoles additionnels n°1, n°4 et n°7, dans les cas où la violation des droits garantis dans ces documents est intervenue après leur entrée en vigueur à l'égard de la République d'Albanie.

La République d'Albanie déclare, sous la condition de réciprocité, reconnaître la juridiction de la Cour européenne des Droits de l'Homme pour interpréter et appliquer la Convention de sauvegarde des Droits de l'Homme et des Libertés fondamentales, ainsi que dans ses Protocoles additionnels n°1, n°4 et n° 7, dans les cas où la violation des droits garantis dans ces documents est intervenue après leur entrée en vigueur à l'égard de la République d'Albanie.
Période couverte: 02/10/1996 - 31/10/1998
Articles concernés : Ex-25, Ex-46


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