1 Background

Post-communist and post-totalitarian Albania is an interesting case study in the framework of Transitional Justice (TJ) modelling, due to widespread “amnesia” since the start of regime change in the 1990s. Forgetting and covering over what happened during the totalitarian dictatorship of 1944–1990 under the communist dictator Enver Hoxha has left political shadows until the present day. The lack of implementation of TJ measures can be linked to the fact that Albania has a high level of political corruption and scores low on international democracy indices.

One of the outcomes of a weak democratisation process in the 1990s is what scholars underline when it comes to the application of any TJ measure, the rule of law. This chapter seeks to explain whether there is any causal link between the TJ measures and substantive legal reforms that could have strengthened the rule of law in this post-totalitarian country. Studies of the impact of TJ measures on Albania are rare, so this case study will summarize some of the TJ measures before 2020 that led to any significant legal reforms within the new political regime since 1990.

Rule of Law and Transitional Justice (TJ) measures are not copy-cat formulas that every society should follow in order to achieve a certain status. The timeline of events and political decisions taken during the past 30 years of transitioning in Albania reflect the one size fits all approach to creating institutions of the “under-democratisation” process to which TJ can contribute in terms of enhancing transparency, accountability and hence also to the rule of law.

Transitional Justice measures in Albania are part of the whole transitioning path towards a more accountable, fair, reconciled society. That is a particular reality that political actors, international organizations, such as the OSCE or Council of Europe, and civil society have neglected to mention or include as part of a national agenda. The 2015 OSCE Survey “Citizens understanding and perceptions of the Communist past in Albania and expectations for the future,” highlights the low concern of Albanian respondents about the Communist past (Project “Supporting a Platform for national dialogue about the human rights violations of Albania’s former Communist regime,” OSCE 2016). The first finding reflects one of the most important concerns that every society in transition should have: the one that condemns past wrongdoings. This is especially the case in a country like Albania where the regime was considered totalitarian.

The lack of interest expressed by the survey respondents in past human rights violations gives impetus to a feeling and a thought that part of the failure of TJ in Albania is both public indifference as well as a failure of political leadership in Albania since 1991. Another interesting finding of this survey is that almost half of the population considered the role of the former communist dictator and totalitarian leader Enver Hoxha in the history of Albania as positive (ibid: 75). Main findings have shown that respondents have labelled order/security as less problematic when compared with past communist Albania but still is more significant as a problem than facing legacies of the past. The communist past is not highly ranked as “big problem” issues, while on the other hand, corruption, bad governance, economy and impunity hold the gross weight of the problem. Given this finding, it is shown that transitional waves in Albania have been crashed after the same rocks for thirty years, without dealing with the roots of the storm in the political environment. What is surprisingly reflected in this survey, is the fact that 53% of respondents were aware of the law passed in 2015 on Opening the Files of Former Secret Service, but that did not make any difference among persecuted people and other respondents. In other words, persecuted people were not significantly more informed on the law than other respondents. Another interesting finding is that over 2/3 of respondents or 69% of them, stated that the opening of files was more significant for Albania than for themselves. It is a sign of awareness that there is no winner or single loser from dictatorships, thus, respondents have directed the benefits of this process to the whole country, not to their individual trauma. On the other hand, it might be a sign of reconciliation with the past showing that the personal suffering is no longer more important than dealing with the whole legacy as a society. Even though survey results show that 90% of people that had read the law on Opening Files of former Secret Service in Albania support it, there is a string mistrust for the process. This mistrust is also an attribute to the failure of these 30 years to develop trustworthy institutions and rule of law. The lack of trust to conduct a fair and transparent process of dealing with the past is as a result of the perception that 64% of respondents have on former secret service files; that is, either they are damaged or destroyed by interested people of the regime, or there will be people and institutions trying to stop the activities of the Authority of Former Secret Service Files.

According to the findings, I will focus on two theoretical approaches and transition paradigms. One can argue, of course, that TJ does not automatically lead to strengthening the rule of law in a country, despite its efforts to reform the legal system. Scholars such as McAuliffe (2013), Mendelski (2015), Teitel (2000), and Carothers (2002) argue that transitional justice itself is conflated often with the rule of law. Although transitional justice and the rule of law are defined as two contested concepts when it comes to defining them properly and targeting respective outcomes, both of them have evolved during contexts of political changes, thus should not be taken as a causal link in analysis. This part will explore these concerns and be put into the analysis context of Albania, even though there is a fundamental research gap in this respect. Proper analytic and academic research lacks both in reflecting on any transitional justice reality and in rule of law development.

2 Transition Paradigm

The “transition paradigm” mindset, which was enhanced after the Cold War, was reliant on theoretical assumptions that, according to Carothers, “constitutes a dangerous habit of trying to impose a simplistic and often incorrect conceptual order on an empirical tableau of considerable complexity” (2002:15). In order to understand this statement, I will draw comparisons on those assumptions which, for the sake of “context,” were aligned to global changes that occurred in other regions of the world.Footnote 1 In the 2020 Nations in Transit report, Albania’s overall score was 47.02 out of 100 and its score on democracy was 3.82 out of 7. Albania was given the status of being a transitional/hybrid regime (Nations in Transit 2020). Hence, even 30 years after regime change the level of democracy, let alone rule of law, is low.

There are several attempts aiming to explain this. For example, according to Skaar et al. (2015), there were reasons for a growing criticism in Albania in terms of the application of successful Transitional Justice mechanisms and initiatives, such as “the lack of theorizing, the passing of unverified claims as universal truths, the muddled and inconsistent use of terms and variables” (Skaar et al. 2015: 1). Contrary to the transition paradigm, Lundy and McGovern (2008: 273) on other ideas of transitional societies, imply that even in “circumstances where, in theory at least, the norms of liberal democratic accountability prevail” transitional justice measures may be taken. This statement demolishes one of the points of the transition paradigm, apart from the set-up of democratic institutions and the separation of powers, and broadens the way for the conceptualisation of transitional justice in the field of human rights.Footnote 2 Transition paradigms are manyfold, and Mihr (2018), for example, advanced the analytical research on regime change in relation to democratic or autocratic regime consolidation, defining the respectively transitional and transformative eras of a political landscape. As such democratisation is not a process that can be taken for granted and which is automatically established once a regime changes, nor is it a process that passes steps of development. She argues that “the difference is grounded in the way powers and institutions use TJ measures for their political goals” (Mihr 2018: 8). Evidence shows that none of these explicit assumptions correlate with the state of Albania’s transition during the period from 1990 until 2020. Albania is a country which still has been scored as a transitional or hybrid regime, with features of an autocratic system where the polarisation of political parties and of society is at the highest point, sometimes followed by a compliant policy towards international standards and in other times with no point of orientation (Nations in Transit, 2020). The evaluation of Albania as a transitional/hybrid regime in this report strengthens the case for there being “grey zone” countries that Carothers (2002) saw as a category of states which are seen to have “feckless” pluralism. She considered the symptoms of this political syndrome to be an “elite-dominated domain, stale and corrupt politics, with a permanent weak state” (2002: 11).

Political transitions and transformations after dictatorship have drawn a lot of attention over the past decades, and Albania is just one of many cases that fit in many of these schemes. One of them is the paradigm that Fletcher et al. (2009) outline, when they state that contrary to the transition paradigm that had been applied after the Cold War, there are other assumptions and theoretical reference points. They highlight the “dynamic relationship among the racial, ethnic, and religious identity of those persecuted, their political power, and the social values to which political leaders could appeal in crafting the state’s response to the violence” (2009: 207). Within the basket of this conceptual framework, we come to terms of significant differences of TJ processes in developed and less developed countries. Given this, TJ mechanisms applied in these societies are influenced by the nature of conflict and its length; reflect the legacy of the regime type and its leadership modus operating in particular for the post-communist countries. The political and societal culture and traditional norms of a given country have to be taken into account (2009: 166).

The most challenging part of politics and political leadership is to commit to addressing past wrongdoings by choosing a contextualized approach that would lead to a national consensus to allow for any TJ and reconciliation process to start in the first place. There is a huge political and societal responsibility to protect one’s own society from the many skeletons of the past. It is necessary to be able to control and manage this delicate process in order to achieve trust, a stable society, local ownership and a turning point in the history of politics. A point to consider when analysing the TJ process in Albania is to question whether justice reforms and tools are conceptualised as transitional justice or not.

Over the past three decades, the bonds of legitimacy have been eroded in Albania by the state of political discourse, by political boycotts and the non-recognition of elections by all political parties, by the fragile state of institutions, by massive waves of emigration, by tendencies, actions and/or initiatives that enforce an authoritarian attitude, by regional instability and by inconsistent policies which sometimes are not in the national interest. The question which should be asked is “transitioning to what political regime?”.

Democratic institution-building does not lead automatically to democracy, and its transitioning paths taken by political and civil stakeholders in society alike should not be taken for granted. These paths require willingness and commitment as well as functioning political parties and leadership. Transition and transformation of the institutions and society are often speculated about in Albanian political circles and seen as the finish of a glorious marathon. Many eminent scholars have emphasised the role and place communities have as a condition to transformative change. Both public interest and public participation influence the direction of the transition, whether it is towards an accountable and stable society, or towards a political façade of democracy and rule of law. Transitional justice measures are merely tools to balance public interests after times of conflict and violence (Mihr 2018:102); and the tendency to exclude local communities as active participants in transitional justice measures is a primary flaw, raising fundamental questions of legitimacy, local ownership, and participation (Lundy and McGovern 2008: 266). Fletcher et al. highlight that the “goal of transitional justice is to initiate a process that allows for a dynamic interaction between the society’s culture and practices to develop responses that reflect what is unique in that society (Fletcher et al. 2009: 210); and the increased participation of the public is necessary to ameliorate the alienation in the relationship of the individual to governance and government” (Frasheri 2011: 63).

3 The Rule of Law in Context of Transitional Justice

The relationship between transitional justice and the rule of law is their “transitional” path in the same context and during the same time period (McAuliffe 2013). In the case of Albania this is to better and properly understand the interconnection and/or cross-cutting issues of both concepts in a country that lacks TJ measures and where the rule of law has been scored lower during the last five years. Information on the status of the rule of law in Albania is largely missing, apart from the findings and scores of the well-known Indexes for the Rule of Law, which provide data annually on the performance level of issues, studies and policy briefs on this subject. Teitel (2000) highlighted that the rule of law is shaped by political circumstances, law here is not mere product but itself structures the transition” (2000: 6). This claim helps to better understand the rhythm of the transitional waves in Albania when considering the noisy, partisan, politicised legal initiatives, driven by the usual business for electoral interests. It has happened so since the inception of the post-communist Constitution and so on and so forth. In the same context, McAuliffe tried to establish comparative grounds on these two concepts, in order to bring innovative thinking that it should not be taken as a fact that this relationship is “mutually beneficial” (McAuliffe 2013: 4). The key issues in McAuliffe’s transitional justice versus rule of law debate rest for example on the differences in focus and the different scales of implications in society. Transitional justice, as opposed to the rule of law, does not raise concerns about the ends of any mechanism, while the rule of law considers the effects “beyond the vague intuition that accountability is necessarily useful” ( ibid).

Ekiert and Hanson (2003) have deconstructed the communist legacy of former socialist state regimes in different East European countries. They concluded that political developments and transformations occurred differently in different countries, and this happened due to the “initial conditions, timing and sequencing of reforms, quality of policies, institutional choices, the extent of external support” (Ekiert and Hanson 2003:104). The same conclusion can be drawn for the Balkans region, where there were different patterns of political developments in the former Yugoslav Federation with its dissolution into independent countries. The domestic political environment in these states showed signs of having different logic of consequences, and there were disparities among them which were fuelled by conflicts and ethnic disputes. The modes of relationship between the state and society frame what we simply put as the rule of law.

The state of the Rule of Law in Albania today can be extracted from the data of the Bertelsmann Transformation Index (BTI) 2020 and the World Justice Project (WJP) Rule of Law Index 2020. According to these indices the rule of law in Albania, which is part of the same regional picture, is still under construction. The latest BTI report on Albania published in 2020 states that “the country has short experience of independent statehood, lack of democratic experience, socioeconomic underdevelopment, the prevalence of authoritarian leadership and lack of autonomous civil society—are often cited as explanations for Albania’s difficult transition to democracy” (BTI 2020: 4).

Albania has faced a difficult path transitioning to a rule of law-abiding country because of the compromising relationship between the executive and the judiciary, where the executive takes advantage of the judiciary, and secondly due to the lack of legal certainty due to high levels of judiciary corruption (Elezi 2017). Thus, Albanians are left to think that the reconstruction of the rule of law in Albania started in 2016 with judiciary reform with the vetting process as its mechanism. This is to say that for the first 25 years after the regime changed, Albania failed to engage with legal transformation.

The Institute for Democracy and Mediation (IDM) in Albania presented its opinion poll findings on trust in institutions in 2020 by stating that in 2019, Albanian citizens continued to trust religious institutions (65.6%) and the army (59.4%) the most, followed by educational institutions (57.3%), civil society organisations (56.3%), state police (54.6%), healthcare institutions (51.4%), and the media (50.7%). Central and local government, parliament, prosecution, the President, and the courts continue to receive low trust ratings with political parties receiving the lowest rating (22.5%). The executive, as compared to the legislative and judicial branches, maintains a higher level of trust” (IDM 2020:28). The overall results of this opinion poll show that the rule of law in Albania is still transitioning despite deep reforms to its judicial institutions, fundamental changes to the Constitution and foreign technical assistance which has provided legal experience. There is also no mentioning of TJ in the context of legal reforms, trials of former communist leaders, vetting or lustration. It also shows that any reforms based on compliance and not on their contextual parameters, and the lack of a leadership style that takes responsibilities and commitments, are part of the reason transitional justice in Albania has been delayed so long. According to the WJP Rule of Law Index, another international index measures adherence to the rule of law by examining eight factors. The four factors that are of interest to Albanians are “constraints on government powers,” “absence of corruption,” “civic justice,” “criminal justice” (WJP Rule of Law Index 2020). In Albania, the factors which scored low points and are most concerning are: “government powers are effectively limited by the judiciary” which scored 0.30 out of 1; and “government officials are sanctioned for misconduct” which scored 0.39 out of 1. The “constraints on government powers” factor highlights issues such as the lack of accountability, the intervention of the executive in the judiciary, and the authoritarian tendency of the government.

The scoring on the “absence of corruption” factor highlights a highly corrupt judicial branch, as does the “legislative officials that use public office for their own private gain” factor which scored 0.23 out of 1, and the “government officials in the executive branch that use public office for their own private gains” factor which scored 0.39 out of 1. This data proves the claim that “officeholders who break the law and engage in corruption are generally not prosecuted. The political patronage networks within the judiciary have helped to cover up and even facilitate widespread abuses of public office, including within judicial ranks” (WJP 2020: 11).

4 Politicization of Legal and Judicial Reforms in the Context of Transitional Justice

One of the many concerns on the legality and legitimacy of the Albanian way of doing politics is the doubt felt about what the relationship between the judiciary and politics has on reforms and other processes in terms of the rule of law. Of course, a country in transition cannot stay in transition for an indefinite time, it has to transform and consolidate rules within its own society. In the case of Albania, uniquely, there is too much transitioning into legalisation without transformation. Shifting from the legal does not mean that laws do not possess the power of transformation, but it varies from country to country, depending on the nature of the process and of the actors involved in the transformation process (Frasheri 2011: 70). According to Frasheri (2011: 72), the exact definition of the rule of law in countries in transition is constantly shifting according to the exclusive function of what an organisation needs to do to justify legal reform projects. He explains the Albanian case through the “inflation of legislation” which from the very first sight might seem to have a very positive and transformative impact on the legal domain, but are actually “devoided from any significant impact on how society functions” (2011: 63). I claim here that this tendency to produce as many laws as possible is superficial, ostensibly to look good in the international community. It has created a large distance between the citizens and representative politics. In my opinion, it has created a dictatorship of laws that emphasise “technical procedure rather than political or social nature of expertise” (2011: 65) and where citizens are treated like recipients rather than participants and agents in the law-making process.

It is a widely accepted fact that the legacy of the very atypical communist regime in Albania has had an excessively and enduring influence on the leadership style and on the whole legal and institutional system in the country. The last attempt to reintroduce lustration legislation was rejected by the governing Socialist Party due to it not be distinct enough from the previous lustration law which had been ruled unconstitutional by the Constitutional Court in 2010.

There are two ways to interpret this failure to successfully reintroduce lustration legislation. The first interpretation is the fact that the previous lustration law had become highly politicised and had been misused by political parties; a reflection of unwillingness by the political leadership of main parties to align the Constitution with measures of a transitional justice mechanism which would put first dignity and fairness for the people who had suffered under the communist regime. The second interpretation of this failure is that since the early days of a pluralist regime, there has not been a force for transitional justice in Albania—one that would bring into politics another narrative about unity, national reconciliation and the culture of compromise. Against this backdrop, Frashëri points out that in contrast to other post-communist countries, the case of Albania is worth studying due to its complexities and the “experiments done and still being done today in reforming the political landscape, economy, society and the legal system; associated with differing political wills and legacies of the multitude of domestic and international actors” (2011: 65).

5 External International Actors

Evidently, in international comparison, not all former communist countries drove with the same speed and vehicle through liberalization, democracy or into a relapse into authoritarianism (Mendelski 2018), in particular when we look at former communist countries in Central Europe or the Baltic countries. Among a group of states called “laggard,” Albania within the Western Balkan countries, “deal with a weak separation of powers, presence of judicial corruption, politicised judicial system” (2018: 116). The road that would have led to the rule of law is under expensive construction both in terms of social costs and legitimacy. Hence the “notion of the rule of law is reduced to the empowerment of the judicialization of politics, a worrying trend towards juristocracy” (2018: 117). External factors such as the European Union, the Council of Europe and the OSCE play a not to be underestimated role when it comes to TJ measures and legal reforms and law enforcement.

5.1 The European Union

The European Union (EU) has considered the lack of rule of law in Albania since the country sought closer partnership with the EU. Since 2012 the EU has allocated around 100 million euro to rule of law sectors and pledged around 34 million euro for justice reforms in the period 2019 to 2021’’ (BTI 2020: 35). The international “investment” in legal reform processes and other initiatives which aim to embrace the norms, values and standards of liberal democracy has been hindered by several factors, which Mendelski (2018) has related to, for example, the lack of a well-elaborated methodology to allow objective evaluation of the rule of law, and the fact that more reforms do not mean more progress in the rule of law. According to Mendelski “legal reforms have failed due to their disempowerment by politicians and the legal incoherence which means contradictory and incoherent legislation” (Mendelski 2018: 118–119, 334–339). For Frashëri, the EU is key if Albania ever escapes the vicious cycle of corruption. The desire for closer integration with the international community and for greater Europeanization has provided a powerful incentive to adopt more laws according to EU norms and standards than the country is able to absorb and enforce (2011: 68). This political style on “compliance” for their political purposes has ignored the context and capacities that Albania provides. This stance is not only hypocritical to both the international community and citizens, but it further illustrates an unaccountable political attitude, which escalates the political crisis and society division. Yet, authoritarian legacies, one-man style of political leadership, hierarchical political organisations, weak civil society, post-authoritarian political culture, and a dominant system of patronage and corruption continue to hinder the country’s progress (BTI 2020: 32).

But the most symbolic way of how the rule of law is mirrored over years is the constitution-making process, from its inception after the fall of the communist regime, until the most recent changes of July 2020. At the height of the pandemic the parliament in Tirana passed constitutional amendments related to the electoral system which aims to eliminate clientelism. Previous reforms had failed to leverage the rule of law.Footnote 3

5.2 The OSCE

In 1997 at its 108th Plenary Meeting, the Permanent Council of the Organisation for Security and Co-operation in Europe (OSCE) took Decision Nr 106 to establish an OSCE Presence in Albania. The Albanian authorities made this request as it was felt necessary to have international assistance due to the civil conflict in 1997. Initially the two main tasks of the OSCE Presence were democratization, the media and human rights. These aims fit with the context of the internal situation in Albania at the time, and its primary initial efforts were principally responding to unexpected situations and challenges (Everts 1999: 271). The OSCE Presence in Albania was actively involved during these difficult times in the country, seeking to promote democracy, to facilitate and mediate conflicting political discourse and to reconstruct the post-communist country with rule of law reforms. The OSCE Presence in Albania has developed its programmes of intervention in several ways as Albania has evolved, due to the different liberalising and democratisation processes being implemented and its transitioning to democracy. It is worth mentioning that the OSCE Presence has made great efforts to put the issue of transitional justice at the centre of the national agenda. It has transformed its mission into a more accomplished and transformative one. In terms of initiatives of dealing with the past and of the communist legacy in Albania, the OSCE Presence has remarkably accomplished significant steps that other international and/or local actors have not been aware of before. To give the full perspective on this, the latest project was the establishment of the Transitional Justice Centre within the premises and faculties of the University of Tirana, which marks the first academic effort to institutionalize Transitional Justice in its kind as a proper academic tool to navigate thoroughly into the past.

6 Further Research

Despite a number of legal and constitutional reforms and attempts to launch TJ measures, Albania scores low in rule of law and democratic performance. For the sake of European integration and compliance with OSCE standards, the country aims to meet the demands made by other international stakeholders. This compliance does not make Albania different from the other post-communist states in the region, but Albania is different and unique to them when it comes to deliberating on introducing any TJ mechanism—to which there is still widespread reluctance. The ongoing government propaganda on the rule of law does not make up for the lack of political responsibility and willingness to address past massive human rights violations.

Attempts to design a contextualized transitional justice programme have been undermined and its scope has been limited due to lack of interest by civil society to advance the transitional justice discourse on the political agenda and lack of a national strategy on ways the nation can come to terms with its communist past.