KLI organized the conference “Free legal representation in criminal matters and the implementation of the European Court of Human Rights case law”
Thursday 14 September, 2017
Pristina, 14 September 2017 – Kosovo Law Institute (KLI) in cooperation with the “Demand for Justice” program, which is realized by National Center for State Courts (NCSC), funded by the US State Department, the International Narcotics and Law Enforcement Unit, on Thursday in Pristina, organized the Conference “Free legal representation in criminal matters and implementation of the judicial practice of the European Court of Human Rights”.
During the conference KLI has published the report “Free legal Aid in criminal matters and the implementation of the European Court of Human Rights standards by the Courts of Kosovo”, which includes the monitoring findings of the General Departments – Criminal Divisions – of Basic Courts in Pristina, Prizren and Peja, from 1 February to 30 May 2017, the domestic legal framework, international standards applicable in Kosovo as well as concrete recommendations.
Ehat Miftaraj high researcher at KLI said that from 1 February to 31 May 2017, KLI researchers have monitored a total of 524 court hearings in the Criminal Division of General Departments in Basic Courts in Pristina, Peja and Prizren. This monitoring included 667 defendants, of whom 457 (68.51%) had no legal representation while 163 (31.49%) defendants had legal representation. “Statistics prove that in the cases of general crime departments, most of the defendants did not have legal representation. In 163 cases when defendants had legal representation, only 20% received legal aid, while 80% of these defendants paid for their defense. In practice, free legal aid in cases of general crimes is provided ex officio only when the criteria of Article 57 (i.e. pre-trial detention hearings), but are rarely provided as free legal aid with discretion (Article 58). As a result, our sample shows that only 32 of the 667 defendants in the cases of general crime departments have received legal counsel at public expense”.
Miftaraj said that state-sponsored free legal aid is a fundamental right of the person charged with a criminal offense that may involve the risk of his life or personal freedom. “However, this right is not limitless and subject to restrictions based on the criteria already established by the ECHR and extends to a number of ECtHR decisions which include: 1) financial means, and 2) “the interest of justice” which is further defined as an assessment i: a) the seriousness of the offense and the severity of the possible sentence, b) complexity of the case; and c) the social and personal status of the defendant”. According to him, irrespective of whether the courts ultimately implement the most comprehensive and liberal criteria set out in Article 4 of the Law on UCI, or less strict requirements, but nevertheless is substantial as defined by the ECHR that the state has an inevitable and immediate obligation to calculate, allocate, and provide government funds to the NJF Agency so that courts can provide legal aid to indigent defendants in a manner compatible with the legal framework of Kosovo. “Failure of the state to provide such resources to indigent defendants charged with a crime under eight (8) years of imprisonment not only violates Article 58 of the CPPRK and Article 4 of the Law on FLA but also contradicts Article 30 (5) of the Constitution and Article 6 (3) (c) of the ECHR that implement directly to Kosovo. Concerning the identification of existing funds, the KLI also concludes that a substantial amount of “ex office” unpaid legal fees (from convicted defendants) represent not only the failure of the courts, but a potential source of relief for the financial burden of the state”, said Miftaraj.
John Furnari, director of the “Demand for justice” Program, said that it is an honor for NCSC and KLI to be associated with this wonderful and researched report as part of the “Demand for Justice” D4J program funded by the US State Department INL. “In Kosovo, the Criminal Procedure Code has Articles 57 and 58 that try to cover this problem but are not doing so adequately. I am very excited that we now have a commitment from the KBA and I know that there are many members here present from the KBA who have awakened to her constitutional obligation”. Furnari said pro bono representation is a solution to this problem, but it is not the only solution, there should be state funding to solve this problem. “With this I want to thank you all for the presence here and to share this report and to discuss some of the recommendations that are included in it”.
Aferdita Bytyci, President of the Basic Court in Pristina, said that for the judges the representation of the parties in the procedure is facilitated when the parties are represented by a lawyer. Even according to her, she as a lawyer, tomorrow in a court case would need a lawyer even if the criminal offense is up to one year of imprisonment. “Of course, I need a lawyer because I do not know how to defend myself, while not talking about the secular parties who do not know where the entrance or the exit is, let alone what is being said or what is being gained in that process. I support this work of the KLI because something really should be done and legal professional lawyer should be provided to the parties”. She emphasized that there is a lack of budget and that is why many court proceedings in the general department are completed without a lawyer.
Teuta Krusha, chief of the General Department of the Basic Court in Prizren, said that the findings of the KLI present the reality that the judges face every day. “In the court we assign an ex officio lawyer for the sake of justice but these cases are very rare, are symbolic cases”. Krusha said that judgments would be more qualitative if represented by professional defense. “There are cases where women also appeared in these cases, especially nutritional mothers who are totally without judicial protection and there are problems whereby the court should probably take care of the official duty, but we also have budgetary constraints, we have other constraints in the procedure when it is not obligatory defense therefore we must also stick to these, so this project is good, I wish to work further”.
Ramadan Gashi, chief of the Free Legal Aid Agency in Kosovo, said that free legal aid is a constitutional category. “Free legal aid should be available to those who do not have sufficient financial means if such aid is necessary to ensure effective access to justice.” He said that in practice this agency is failing to fulfill the constitutional obligation to provide free legal defense due to the lack of support of this institution. “Actually, we are legally obliged to provide free legal aid in all areas, criminal, civil, administrative and minor offense, but because of the lack of budget, we do not offer criminal legal aid at all stages. We offer the offense until the moment when the need for representation is presented”.
Lawyer Behar Ejupi, representative of the Kosovo Bar Association, said that Article 166 of the Code of Criminal Procedure is very clear regarding the issue of engagement, where one of the fundamental rights of arrested person is the engagement of the lawyer, which means that at the moment when he is notified of the abolition of his freedom, the right to a lawyer is granted. “But, paragraph 2 is very clear where it says that if there is no possibility to engage a lawyer then it is offered free of charge”. Ejupi said that KBA has over 800 members, who are obliged to represent one for free.
Baki Gimolli, representative of the Ombudsman Institution, said that the Ombudsman, within the constitutional and legal powers, paid special attention to the treatment of defendants in criminal proceedings. The right to have a defense lawyer and the right to appoint a defense counsel at public expense is not an optional right, but is an obligatory right, with the fact that it derives from many international instruments and from the constitution of the Republic of Kosovo”.
Participants in this conference were representatives of the judicial system, the prosecutorial system, Presidents and judges of the Basic Court in Pristina, Prizren, Peja, Appeal Court in Pristina, Supreme Court of Kosovo, Kosovo Bar Association, Chief Prosecutors, Prosecutors, and representatives of the Ombudsman, Free Legal Aid Agency, NCSC, civil society and the media.
The “Demand for Justice” program aims to strengthen citizens’ demands for justice in Kosovo. This program is implemented by NCSC and is supported by the US Department of State /INL.
For more details, please find below the specific recommendations and click on the following to download the Albanian report (KLI RAPORT ALB), English (KLI RAPORT ENG) and Serbian (KLI RAPORT SRB KLI RAPORT SRB):
- State should allocate sufficient budget to cover free legal aid services for indigent defendants.
- Courts should immediately begin recovering court costs from convicted defendants who received State-funded legal aid without a financial need for these services.
- Institutions and bodies in the Kosovo Legal System including the Kosovo Bar Association (KBA) the Free Legal Aid Agency, the wider lawyers community and the government should organize efforts to provide free legal services for those citizens who cannot afford it.
- Judges, prosecutors and the police should implement Article 4 of the FLA Law and/or interpret Article 58 of CPC of Kosovo in line with ECtHR jurisprudence when making determinations about the “interest of justice” affecting defendant’s ECHR 6.3(c) rights.
- Parliament should amend Article 58 of the CPC in order for the “interest of justice” principle to be clarified so that it explicitly states criteria set by the ECtHR: a) seriousness of the offense and the severity of the potential sentence, b) complexity of the case; and the c) social and personal situation of the defendant.
- The KBA, due to its Constitutional obligation to deliver FLA, should demonstrate leadership by advocating for State funds for FLA, but also to expand on their existing KBA pro bono obligations by establishing mechanisms (i.e. Legal Clinics or Pro-bono Center) that enables KBA members to offer indigent citizens free representation in criminal cases.
- The Supreme Court of Kosovo should give a legal opinion on the application of the European Court practices regarding the provision of legal representation of defendants in all criminal cases.
- The Appeal Court to unify judicial practices regarding punitive policies.
- Approval of the adequate legal framework determining the judicial expenses and judicial lump sum.
- General Departments to implement Article 450 of the Criminal Procedure Code regarding criminal matters.