Albanian blood feuds: Another unconvincing Country Policy and Information Note (CPIN)

1. This is a review and critique of the new Country Policy and Information Note (CPIN) on blood feuds in Albania, published in September 2022. Nothing in this document constitutes legal advice, and it is provided for information purposes only.

2. In my reviews of the previous October 2018 and February 2020 CPINs on blood feuds, I argued that those CPINs were wholly unjustified in holding that an Albanian blood feud case could properly be certified as “clearly unfounded” under section 94 of the Nationality, Immigration and Asylum Act 2002.

3. I pointed out that EH (blood feuds) Albania CG [2012] UKUT 348 (IAC) accepts that a sufficiency of protection and an internal flight/relocation alternative will not always be available. In order to depart from this, a tribunal would need “strong grounds supported by cogent evidence” (SG (Iraq) [2012] EWCA Civ 940 at [47]). The previous CPINs failed to engage properly with that issue. I analysed the evidence relied upon in the previous CPINs, and argued that that evidence was insufficient to justify a departure from EH.

4. The new September 2022 CPIN differs from the two previous CPINs in that it explicitly argues that there are “strong grounds supported by cogent evidence” to justify a departure from EH. In this article, I will argue that the evidence in the September 2022 CPIN is plainly insufficient to justify a departure from EH.

5. It is important to understand that the CPIN is not binding on Tribunal judges. It is merely a statement of the Home Office’s position. As the Tribunal highlighted in MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 443 (IAC) at [8], “the Home Office has no legal competence to decide whether or not a UT country guidance case is to be followed or not… the production of “country guidance” is solely a matter for the Tribunal and the courts.”

6. Further, even if the Secretary of State considers that the evidence is sufficient to justify a departure from EH, it does not follow that she can properly certify claims on the basis of the CPIN. A claim being “clearly unfounded” means “so clearly without substance that it was bound to fail”, Thangarasa and Yogathas [2002] UKHL 36. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded, ZT (Kosovo) [2009] UKHL 6. Therefore, even if the Secretary of State considers that EH is outdated, she cannot certify unless she is satisfied that the contrary view could not reasonably be taken on appeal. As we will see, the evidence in the CPIN falls far short of meeting that standard.

Sufficiency of protection

7. The first key issue is sufficiency of protection: if a person establishes that they are subject to an active blood feud, would the Albanian state provide sufficient protection? EH says “The Albanian state has taken steps to improve state protection, but in areas where Kanun law predominates (particularly in northern Albania) those steps do not yet provide sufficiency of protection from Kanun-related blood-taking if an active feud exists and affects the individual claimant… Where there is an active feud affecting an individual and self-confinement is the only option, that person will normally qualify for refugee status.”

8. The CPIN argues for a departure from this conclusion. In the section headed “Consideration of issues,” it states:

“2.5.4 However, that was based on the situation 10 years ago, in 2011/2012. There are considered to be ‘very strong grounds supported by cogent evidence’ to depart from this part of the caselaw.

2.5.5 In particular, since 2011/2012:

a. Albania has undergone significant reform in preparation for accession to the EU. It achieved EU candidate status in 2014 and is further along in the process, with the EU commencing membership talks in July 2022.

b. The UN Human Rights Council, in July 2019, and Global Initiatives in December 2021, noted that, whilst improvements are still required, the Government of Albania has made considerable progress in dealing with blood feud by developing an action plan to address the issue (see Action and initiatives).

c. In 2013, the Albanian justice system developed grounds to prosecute the practice of Gjakmarrja through preventative sentencing (see Legislation).

d. Since 2012, there have been a number of convictions under Article 78/a (Murder for blood feud) and Article 83/a (Serious threat to retaliation or blood revenge) of the Criminal Code.

e. There has also been an increase in the number of registered cases of murder for blood feud from 2017 to 2020, and of cases of involving “incitement to blood feud”. Although there have been fewer convictions and not all cases have made it to court, it must be noted that these could be for a range of reasons (see Convictions for blood feud).

f. The General Directorate of State Police had compiled a database of all families affected by blood feud. Education (effectively via homeschooling) is being provided to children who are affected by self-confinement.”

9. The arguments at 2.5.5 of the CPIN are not compelling, for the following reasons:

a. Limb (a), by itself, tells us nothing about whether the Albanian authorities have put in place adequate measures to protect victims of blood feud. As set out later, the sources paint a decidedly mixed picture of the effectiveness of Albania’s recent reforms.

b. Limb (b) is misleading. The observation attributed to “the UN Human Rights Council” is quoted more fully at 6.1.2 of the CPIN. It comes from [52] of the Report of the Working Group on Albania’s most recent Universal Periodic Review. However, reading [52] in context, it is apparent that it forms part of a summary of the submissions of the Albanian delegation at the Working Group session. It forms part of a section of the report called "Interactive dialogue and responses by the State under review". [50] of the report begins "Responding to the interventions, the delegation of Albania noted...” The following paragraphs of the report summarise Albania's submissions, concluding at [61] "In conclusion, the delegation highlighted..." The CPIN at 2.5.5(b) misleadingly presents [52] of the Working Group Report as if it were an independent assessment by the Human Rights Council. But it is in fact a statement emanating from the Albanian State itself, and should therefore be viewed with some caution.

c. As to the “Global Initiative report,” two such reports are cited at 6.1 of the CPIN. One report is publicly available. The publicly available report notes the existence of an Albanian Government action plan, but does not present any independent evidence that that action plan has been effective in tackling blood feuds. In fact, it states “However, the Ombudsman reported later that year that after the resolution, ‘no concrete solution has been made by state institutions to implement the tasks set by the Parliament to prevent this phenomenon and to issue bylaws’. In its 2018 progress report, the EU noted that ‘the resolution and recommendations on blood feuds still require follow-up’.”  This hardly constitutes compelling evidence that EH is outdated.

d. The other Global Initiative report appears to be unpublished and is not linked in the footnotes to the CPIN. That report is quoted at 6.1.8 of the CPIN as saying "Our interviewees confirmed that the steps taken by the government since 2015 are insufficient to address blood feuds. Greater action is needed, for example, to strengthen measures against judicial corruption and corruption of public officials because corrupt judges may refrain from imposing the proper sentencing for blood feud murders. Furthermore, while the justice reform is having some positive effects, there is still room for improvement when it comes to dealing with blood feuds. For example, interviewees suggested that the justice reform should be thorough to strengthen the rule of law and more should be done to improve economic and education status of families in blood feud, especially given that beyond monitoring and some home schooling, the action plan seems to be having little effect." On the face of it, this hardly looks like a ringing endorsement of Albania’s strategy, and certainly does not constitute compelling evidence that EH is outdated.

e. Limb (c) refers to section 4.1 of the CPIN. This section tells us what the penalties for blood feud are on paper, but not how effectively they are enforced. What matters is protection in practice, not in theory.

f. Limbs (d) and (e) appear to be based on section 7.1 of the CPIN, which sets out statistics on convictions for blood feud. Looking at this section, the numbers are very small (only one person convicted in 2020, none in 2019, 2 in 2018, 3 in 2017 and 1 in 2016) and only a minority of cases investigated result in a guilty verdict. These numbers do not reveal what proportion of blood feud perpetrators are effectively brought to justice. In any event, what matters is the systemic ability of the state to deter and/or to prevent the form of persecution of which there is a risk, not just punishment of it after the event: Bagdanavicius [2005] EWCA Civ 1605 at [55(5)].

g. As to limb (f), the fact that the State Police claims to have a database of those affected by blood feud (as set out more fully at 5.1.15 of the CPIN) does not mean that this database is actually comprehensive. Indeed two of the CPIN’s principal sources, a report by the Belgian Commissioner-General for Refugees and Stateless Persons (CEDOCA, pp 23-24) and a report by Operazione Colomba (p.17), both provide evidence that families and communities actively conceal blood feuds from the authorities, with Operazione Colomba referring to a “code of silence”.

h. The reference to home education is wholly irrelevant. The Tribunal rightly concluded in EH at [71]-[72] that expecting a person to self-confine in order to avoid persecution was analogous to the “living discreetly” requirement considered by the Supreme Court in HJ (Iran) [2010] UKSC 31. It, therefore, concluded that if self-confinement is the only option, a person will qualify for refugee status. That analysis is not affected by the availability of home education. It is implausible that a Tribunal would conclude that lifelong self-confinement was no longer persecutory merely because some home tuition might be available. In any event, this issue is of no relevance to those asylum-seekers who are adults at the date of return.

10. Like its predecessors, the CPIN also relies on the CEDOCA and Operazione Colomba reports, which I considered at length in my comments on the previous CPINs. In summary, the CEDOCA report reveals that its interviewees did not have a unanimous view about the effectiveness of the police in tackling blood feuds, and that there were disagreements between the interviewees. Two experts, Elsa Ballauri and Operazione Colomba, expressed “strong doubt that the police is capable of controlling, monitoring, preventing and prosecuting the contemporary blood feud phenomenon.”  [CEDOCA, op. cit, pp 33 and 35].

Much of what was said by the interviewees, both positive and negative, was in general and anecdotal terms, with few specific examples. This evidence plainly does not justify a departure from EH. Nor does the Operazione Colomba report, which notes that “police investigations have not always produced the desired results,” giving a specific example of the murder of a 70-year-old man and his 17-year-old granddaughter on 14 June 2012 in connection with a blood feud. At the date of the report in 2017, that killing “had yet to lead to justice being done” and the feud had continued with another attempted murder [Operazione Colomba, op. cit., pp 28-29].

11. As regards the purported improvement in Albania’s institutions generally, the CPIN sometimes quotes sources selectively. For example, at 7.2.1 it cites Bertelsmann Stiftung’s 2022 Albania Country Report on the subject of Albania’s ongoing judicial reform. But it fails to quote passages from that report which are less complimentary about Albania’s efforts. The passage quoted by the CPIN is immediately followed by the following:

“Nevertheless, several of the key structures of the new system – the Constitutional Court and the High Court – are not fully operational because of the blockage or malfunctioning of the new appointment rules. Throughout the process, moreover, both the people and structures in charge of vetting have been subject to intense pressure, including defamation. With less than half of the judiciary vetted, many appointment rules having been contested, various active political actors working against substantial reform and the poor record of the internationally led reform effort, the full results of the reform are yet to be seen.

Officeholders who break the law and engage in corruption are not adequately prosecuted. A set of new rules associated with the judicial reform have increased capacities to investigate complicated cases of corruption. In particular, the establishment of the Anti-Corruption Task Force and the dedicated Anti-Corruption Directorate is expected to improve the investigation and prosecution of high-level corruption cases. The creation of a network of anti-corruption coordinators in public agencies has also improved the effectiveness of the fight against corruption.

However, institutional progress alone is an insufficient measure to assess prosecution of corruption in reality. The formal institutional framework to 6 Operazione Colomba, op. cit., pp 28-29 prosecute corruption has always been a key target for the European Union and other international actors. Continuous changes of the institutional framework, which the supervising international structure have traditionally used as a measure of progress, have failed to establish a solid track record of investigations over the long term. The EU 2020 annual report assesses that investigations have not resulted in a substantial number of final convictions of high-ranking state officials. This fosters a culture of impunity within the higher levels of the state. Importantly, many of the judges vetted out of the system, including eight out of nine Constitutional Court judges and 15 out of 18 High Court judges who were dismissed or resigned, have not been investigated for their misdoings. Many of the key members of the political class and state institutions who have been the subject of various media reports and cases of corruption have randomly slipped through political, legal or procedural loopholes.”  

12. Similarly, at 7.2.2 the CPIN makes reference to the United States Department of State Human Rights Report for 2021, but does not note the numerous passages in that report which suggest continued systemic weaknesses, including a corrupt and politicised judiciary and police force, and failure to enforce the law effectively:

“Although the constitution provides for an independent judiciary, political pressure, intimidation, corruption, and limited resources prevented the judiciary from functioning fully, independently, and efficiently…

In many cases, authorities did not enforce ECHR rulings….

The law provides criminal penalties for corruption by public officials and prohibits individuals with criminal convictions from serving as mayors, parliamentarians, or in government or state positions, but the government did not implement the law effectively. Corruption was pervasive in all branches of government, and officials frequently engaged in corrupt practices with impunity…

Several government agencies investigated corruption cases, but limited resources, investigative leaks, real and perceived political pressure, and a haphazard reassignment system hampered investigations… 

Police did not always enforce the law equitably. Personal associations, political or criminal connections, deficient infrastructure, lack of equipment, and inadequate supervision often influenced law enforcement…

Rape, including spousal rape, is a crime; the law also includes provisions on sexual assault. Penalties for rape and sexual assault depend on the age of the victim. For rape of an adult, the penalty is three to 10 years in prison. The government did not enforce the law effectively. Authorities did not disaggregate data on prosecutions for spousal rape. The concept of spousal rape was not well understood, and authorities often did not consider it a crime…

The law prohibits sexual harassment, but officials rarely enforced it…

Although the legal minimum age for marriage is 18, authorities did not always enforce the law…

The law prohibits discrimination based on sexual orientation, including in employment. Enforcement of the law was generally weak…

The law prohibits all forms of forced or compulsory labor, but the government did not always effectively enforce the law."

13. Overall, the sources paint a mixed picture. There is substantial evidence that despite recent reforms, Albania continues to suffer from serious problems with corruption, impunity, and inequitable enforcement of the law. In short, the current state of the evidence does not provide the strong grounds necessary to depart from EH.

14. Although not core to the CPIN’s argument, caution should also be exercised in evaluating the CPIN’s claims about the prevalence of blood feuds. As set out above, there is evidence that a “code of silence” exists and that many blood feuds are concealed from the authorities, casting doubt on the reliability of Government statistics. In addition to Government figures, the CPIN draws heavily on the published Global Initiative report. But aspects of that report give cause for concern: 

a. The Global Initiative report states “According to a report from 2018, the problem is mostly concentrated in the Shkodra district in northern Albania [Global Initiative, op. cit.]" This claim is footnoted to the 2017 (not 2018) Operazione Colomba report. But that report does not support the view that the problem of blood feud is mostly concentrated in Shkodra. It reports cases of blood feud (gjakmarrja) and vendetta (hakmarrja) in numerous districts of Albania. In fact, it reports more gjakmarrja and hakmarrja events in Tirana than in Shkodra [Operazione Colomba, op. cit., pp 19-20]

b. The statistics in Figure 2, as to the “number of families affected by blood feud at the national level, 2018,” are attributed to “NGO working with affected families in Shkodra,” but the source is not footnoted and the methodology is not explained.

15. We can conclude, therefore, that the new CPIN, like its predecessors, falls far short of providing the “strong grounds supported by cogent evidence” which would be required for a departure from EH as regards sufficiency of protection.

Internal relocation

16. As to internal relocation, section 2.6 of the CPIN does not expressly argue for a departure from EH. However, it fails adequately to reflect the Country Guidance case law and country background evidence, which clearly illustrate that for a person who is pursued by a sufficiently motivated persecutor in Albania, internal relocation is unlikely to be a realistic option.

17. As I have previously highlighted, EH should not be read in isolation. Other Country Guidance case law clearly highlights that internal relocation is not a realistic option in many cases. The Tribunal held in AM and BM (Trafficked women) Albania CG [2010] UKUT 80 (IAC):

“186. We consider that that test, with its emphasis on the particular characteristics of the individual is particularly apposite when considering the position of victims of trafficking who might face internal relocation at a time when they would be suffering the trauma about which Dr Agnew-Davis spoke in her report and at the hearing. We emphasise the terms of the intervention of UNHCR quoted by Baroness Hale in her paragraph 20 above. Moreover we 9 Global Initiative, op. cit. 10 Operazione Colomba, op. cit., pp 19-20 would emphasise that, as stated above, Albania is a country with a relatively small population. Dr Schwandner-Sievers refers to common socio-cultural conduct in which every person was socially positioned. We note the comment that the Director of the Anti-Government Unit, Ms Irena Targa, made to Dr Schwandner-Sievers that:

“Family relations are that strong in Albania, you have to live here to understand this is no fairy tale, how important family links are. A brother might even have trafficked his sister or killed her because she was trafficked, but the relationship is very strong. This is such a small country; it is not possible to live somewhere without being known. The family is so close. For us it is easier to identify everyone immediately. As soon as someone says their surname we know – the police scan the population. Once the name is mentioned, it depends on the family, but they come here from anywhere they can”.

187. We consider therefore that Albania is a country where there is a real fear that traffickers might well be able to trace those who have escaped from them or indeed those whom they fear might expose them. Whether such persons would be motivated to do so is, of course, another matter, as we have discussed above. It is therefore a country where, at least, internal relocation is problematical for the victim of trafficking. To that should be added the difficulties for a single woman to reintegrate into a society where the family is the principal unit for welfare and mutual support as well as, it appears, the channel through which employment is most often obtained. We have therefore concluded that internal relocation is unlikely to be effective for most victims of trafficking who have a well founded fear of persecution in their home area, although once again we consider that it is important to consider each case on an individual basis.”

18. Similarly, it accepted in BF (Tirana - gay men) Albania CG [2019] UKUT 93 (IAC): 

"We accept Ms Young's evidence that a person's whereabouts may become known in Tirana by word of mouth. Albania is a relatively small country and we accept as entirely plausible that a person might be traced via family or other connections being made on enquiry in Tirana. Whether that would occur would depend on the family being motivated to make such enquiries (which motivation would probably depend on an awareness that the person may be living there) and the extent of its hostility. That is a question for determination on the evidence in each case.”

19. Stephanie Schwandner-Sievers, whose evidence was accepted in AM and BM, elaborated on the same view in a report by Asylos and Asylum Research Centre (pp 159-160) on trafficked boys and young men:

“…no, you can’t anonymously live in Albania—that is very different from London or from Bristol or any UK city—because it’s such a small country and because also for cultural reasons, the ways in which people situate you socially. You encounter somebody and you meet somebody, and any social contact you make you are defined as a person through where you are from and who your family is. It is almost a ritual; it is a ritual rhetoric. When you meet someone, you ask “How’s your father? How’s your mother?” And you ask that if you know the father and mother. There also is this very big trope of a good or a bad family. It’s very common in Middle Eastern societies, and prevalent in Albania as well, where it was reinforced during the Communist rule in particular. Albania is an incredibly small society. Also, you have very clear social organization with rules such as post-marital virilocal residence still very common. Society is organised patrilineally. This means that you can relate always somebody through their patrilineage. “Who’s your father?” Mother’s family now matters as well, but you are always judged in terms of whether you are from a good or bad family through your parents’ lineages… There is no anonymous living such as in Europe’s large cities. What chance do you have to reintegrate into a society, without your family, where everything is reliant on family? Just being given a rented flat in a city without pre-existing social contacts would make you very conspicuous and attract attention and suspicion.”

20. Although these cases do not relate to blood feuds, multiple sources confirm that the same position holds true for victims of blood feud persecuted by an aggressor family. Indeed the body of the CPIN acknowledges these sources, quoting the CEDOCA and Operazione Colomba reports at section 11.1, as well as the unpublished Global Initiative Report:

“11.1.1 The Cedoca 2017 report stated: ‘According to multiple sources, some of the affected families are not particularly safer after having moved away from where they were living. The Director of the Prosecutor’s Office stated that for the affected families “the fear can be everywhere”. Also a representative of the Albanian Helsinki Committee warned that in the case of a contemporary blood feud situation, a potential victim will not necessarily be safe after having moved inside Albania. He explained that “each country is a village” nowadays. Mentor Kikia claimed that some of the isolated families cannot even dream of moving to Tirana either because they are either too poor to move outside or because nowhere is safe for them. Elsa Ballauri confirmed that there are situations where moving is not an option because the potential targets will surely be followed, even abroad if necessary. Luigj Mila, Alfred Koçobashi and a representative of the OSCE likewise claimed that the blood feud mentality, insofar as it still prevails, does not know any limits of time and place.’

11.1.2 In its report of December 2017, Operazione Colomba stated: ‘The feuding families monitored by Operazione Colomba in Shkodra and Tirana belong mainly to clans from Dukagjin and Tropoja (7 clans in Dukagjin and 4 in Tropoja). More than half have moved within Albania to city suburbs from their mountain areas of origin, often to escape the possible consequences and risks of a blood feud. Movement within the country reduces tension between parties but does not unfortunately guarantee safety as traditional Albanian society is based on relations between extremely extended families that can easily get information on the location of other people. Often the family surname alone is an indication of where it and its members come from, making it easy to find people who move out of a district.

11.1.3 In its commissioned report of December 2021, Global Initiative noted: ‘All interviewees confirmed that no person is safe from blood feud in any city in Albania. Albania is a small country and people can be easily traced. There is a significant internal emigration flow of people from the north of the country to other regions but these networks can (and will) identify individuals who try to escape and hide… ‘As mentioned above it is very easy to track someone and find people via family connections across the country. Due to the wave of internal migration from the north of the country to central and southern Albania, families that are originally from the north are now present in all in communities of Albania. It is also comparably easy to identify and trace people from the north because of their distinctive customs, accents as well as their names and surnames.’

11.1.4 The Freedom in the World 2022 report, covering 2021 events, noted that ‘Albanians generally enjoy freedom of movement, though criminal activity and practices related to historically predominant honor codes limit these rights in some areas. People are generally free to change their place of residence or employment.’”

21. Given that the CPIN authors are plainly aware of these sources, it is concerning that this important guidance is not reflected in the summary of the position at section 2.6.

22. Finally, extreme caution should be exercised before assuming that the social attitudes giving rise to blood feuds are confined to the north of the country, or that an individual would be more likely to find safety in central or southern areas. As the Operazione Colomba report states:

“…blood feud mentality is not typical of just the most isolated areas. Since most city inhabitants come from rural areas, it is hard to find Albanians born in one of the country’s big cities. The Albanian melting pot has therefore produced such a mixture of mentalities that it is difficult to say that Kanun thinking does not also exist in urban areas today [Operazione Colomba, op. cit., p 13]."

23. Indeed both the Operazione Colomba and the Global Initiative reports highlight numerous cases of blood feud and vendetta in Tirana and Durres, supporting the view that the problem is not limited to the north [Ibid., pp 18-19; Global Initiative, op. cit.].

24. Similarly, in TD and AD (Trafficked women) CG [2016] UKUT 92 (IAC) the Tribunal said, in the context of a discussion of conservative northern social attitudes towards women:

"It might be thought that the increased migration from the countryside to the cities might lead to a weakening in such belief systems, as extended families leave the land and break down into smaller, more independent units. Surprisingly we were shown no evidence to that effect, and in fact it was suggested by Professor Haxhiymeri that such migration - primarily from North to South - has had the opposite effect, of transporting conservative Geg social mores into the more liberal south.”

25. It can be concluded, therefore, that the summary in section 2.6 of the CPIN inadequately reflects the Country Guidance case law and country background evidence, which make it clear that where a person is pursued by a sufficiently motivated persecutor, relocation within Albania is unlikely to be a realistic option.

Conclusion

26. The new CPIN on blood feuds is, with respect, unconvincing. As regards sufficiency of protection, its argument that there are “strong grounds supported by cogent evidence” justifying departure from EH does not withstand scrutiny. As regards internal relocation, its summary of the position does not adequately reflect the Country Guidance case law and country background evidence. Indeed the important sources cited by the CPIN itself in section 11.1 are not reflected in the summary at section 2.6. To certify a claim as clearly unfounded based on the materials in the CPIN would, in the circumstances, be manifestly unlawful.