The matter has been under the public eye for years, but we are now starting to see just how devastating and far-reaching the consequences might be.
In a controversial judgment handed down in February 2019, the Hague Court of Appeal denied extradition to Albania on account of the risk that the requested person would face a sentence of life imprisonment without possibility of parole in breach of Article 3 of the European Convention on Human Rights (“ECHR”).
The requested person, Mr. Arben Frroku, is wanted to serve a sentence of life imprisonment for the premeditated murder of the Tirana Chief of Police.
According to the Dutch Court, the Albanian regime on early release for whole-life prisoners, coupled with the serious deficiencies of the penitentiary system, raises a wide array of concerns. Many of these issues had already been exposed in the past years by the United Nations Office on Drugs and Crime and the Committee for the Prevention of Torture, but to no avail.
This daunting situation was further exacerbated with the adoption of Law no. 36/2017, which introduced stricter requirements for early release. Pursuant to the new version of Article 65 of the Criminal Code (“CC”), as amended in 2017, whole-life prisoners are now eligible for early release only after having served 35 years of imprisonment, and no longer after 25 years (§ 2). Moreover, there is now a statutory ban on eligibility for prisoners convicted for certain offences (including premeditated murder) (§ 3).
There is hardly any doubt that these 2017 amendments render the Albanian framework on life sentence incompatible with Article 3 ECHR.
On the one hand, the minimum punitive period of thirty-five years of imprisonment is at odds with the consolidated stance of the European Court of Human Rights, according to which States must provide for a “dedicated mechanism guaranteeing a review no later than twenty-five years after imposition of a life sentence” (Vinter and Others v. United Kindgom [GC], 9.7.2013, § 120). On the other hand, an absolute statutory ban in respect of certain categories of offences essentially means that a prisoner convicted for those offences never be eligible for parole.
Rather tellingly, just two days ago, the CPT published its 2019 Report on Albania, where it “notes with concern that the Criminal Code was amended in 2017 to introduce whole life imprisonment for certain types of offences; it recalls the relevant case-law of the European Court of Human Rights and recommends that the criminal legislation be amended in order to make conditional release available to all life-sentenced prisoners” (CPT/Inf (2019) 28).
In the course of the extradition proceedings, the requested person argued that, if returned to Albania, he would be subject to the retroactive application of these 2017 amendments, even though they were adopted long after he committed the offences for which his extradition was sought.
In the attempt to dispel these concerns, the Albanian Government had given diplomatic assurances that the requested person would have enjoyed the benefit of the application of the more lenient regime ante 2017. However, these assurances were ultimately deemed insufficient by the Hague Court of Appeal.
In retrospective, the decision not to trust these assurances feels much farsighted.
Just a couple of months later, in July 2019, the Korçë Court of Appeal denied early release to a whole-life prisoner precisely as a result of the retrospective application of the new Article 65 § 22 CC. And this irrespective of the fact that the petitioner, at the time when the legislation was amended in peius in 2017, had already fulfilled the previous temporal requirement for early release on account of having served more than 25 years of imprisonment.
But even setting aside the issue of retroactive imposition of the 2017 reform, the Hague Court of Appeal held that extradition could not be granted for reasons that go much deeper: the entire legal framework governing early release in Albania lacks sufficient clarity and foreseeability.
It has been a long-standing principle in the European Court’s case-law that the mechanism of review of life sentences must be based on “objective, pre-established criteria” (Trabelsi v. Belgium, 4.9.2014, § 137). Meaning that “a whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place” (László Magyar v. Hungary, 20.5.2014, § 53).
Nothing further from the situation in Albania.
Whole-life prisoners may be eligible for early release “only for specific reasons” and “only under extraordinary circumstances”, provided that “rehabilitation aim has been achieved” (Articles 64 and 65 CC).
However, as rightly pointed out by the Hague Court of Appeal, the law does not provide any definition of the “exceptional circumstances” that allow for early release of whole-life prisoners, nor does domestic case-law offer any guidance in relation to the criteria to be taken into account in the assessment of an individual case.
Moreover, as recently admitted by the Albanian courts, no rehabilitation and resettlement programs are in place in the Albanian penitentiaries.
It is irrational to have a policy of making release dependent upon the prisoner undergoing resocialization programs without making reasonable provision for such programs. The unavoidable consequence is that life prisoners have no realistic chance of making objective progress towards a real reduction or elimination of the risk they posed and no means of achieving the rehabilitation aim for the purposes of early release.
Long story short, Albania does not guarantee the possibility, de jure and de facto, of early release for prisoners serving life imprisonment. This means that, until it changes it legislation, there is a serious risk that Albania might not be able to get a hold of whole-life prisoners who have fled abroad.
The great escape has begun. Catch them if you can.