Preliminary investigations and unlawful decision of prosecutor Kujtim Munishi on the file of his chief, Aleksander Lumezi

Thursday 16 November, 2017

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Executive summary

According to the Ruling with no. PPN-202/17, dated 14 November 2017, on the dismissal of the criminal report, regarding suspicions on the manipulation file of the bar exam of Chief State Prosecutor Aleksander Lumezi, handling of this case from the Basic Prosecution in Pristina, was done in violation with the applicable law, respectively contrary to the Criminal Code and the Criminal Procedure Code of the Republic of Kosovo.

Prosecutor Munishi in violation of the law has requested from the Kosovo Police that in preliminary investigation procedure to collect information, question witnesses and seize files regarding a criminal offense, which by law had reached the statutory limitation of criminal prosecution.

Based on the Criminal Code, at any stage of the criminal procedure, courts and other criminal prosecution bodies are ex officio obliged to take care, to consider and to enforce prescription. Thus, the prescription is expressed according to the power of the law (ex lege), in all cases when the prescription deadlines expire.

According to the Criminal Procedure Code, the police are obliged to act only according to the legitimate requests of the prosecutor. Kosovo Police in this case has acted under the unlawful authorization of Prosecutor Munishi.

In the concrete case, the Prosecution never conducted criminal proceedings regarding suspicions of falsification of the bar exam file of the Chief State Prosecutor, respectively did not undertake investigative actions regarding the suspicion of committing the criminal offense defined by paragraph 2 of article 434 by Chief Prosecutor Lumezi, as it was raised in public denunciation.

Prosecutor Munishi monitored by the EULEX prosecutor, despite the fact that he has conducted a preliminary investigation procedure, at the same time in violation of the provisions of the Criminal Procedure Code, has questioned witnesses from Kosovo and Serbia, seized files in the Kosovo Archives and the Ministry of Justice. Seizure according to the decision to dismiss the criminal report was made without a court order. The seizure was committed unlawfully, making the collected evidence unavoidable at any later stage in the court.

Prosecutor Munishi, still not initiated the procedure related to this case, has directed the Kosovo Police to collect information only with regard to the criminal offense that according to the law has been prescribed.

Judicial practice proves that in such cases, apart from evidences, records, decisive role in revealing the truth lies in the expertise of suspicious documents as manipulated. The prosecutor ignored this legal obligation completely, prejudging the case. The same has never asked for expertise regarding suspicions about manipulated files.

Prosecutor Munishi in the Ruling mentions that they have submitted requests for access to the documents regarding the appointment of prosecutors and judges in UNMIK and the OSCE. The same, without accepting any response, takes a Ruling for the dismissal of the criminal report. This in court practice is unprecedented, leaving space to raise doubts that the purpose in this case was the quick closing of the case and not the clarification of the truth.

Four of the living witnesses of the Legal Advisory Committee, who had evaluated candidates for judges and prosecutors in 1999/2000, fully state the veracity of the records, according to which Aleksander Lumezi did not have a bar exam. Moreover, according to these records, former UNMIK SRSG Bernard Kouchner had decreed 31 candidates in violation of the law, including candidates without bar exam. Prosecutor Munishi has not been able to wait for UNMIK and OSCE responses to secure these files to clarify the truth beyond any doubt.

Prosecutor Munishi gave key importance to the evidences of Serbian officials, who during the nineties were appointed through violent measures installed by the Yugoslav state apparatus.

Following in chronology are presented all unlawful actions of prosecutor Kujtim Munishi for investigation of the file Lumezi.

Procedural and legal violations during the handling of the case by prosecutor Kujtim Munishi:

  1. According to the Ruling with no. PPN-202/17, dated 14 November 2017, on the dismissal of the criminal report, Prosecutor Kujtim Munishi on 25 October 2017, authorized the Kosovo Police to collect the necessary information regarding the suspicion that criminal offense is committed “Falsifying of official document”, article 434, paragraph 1, criminal offense prescribed by law.
  2. Prosecutor Munishi only needed 21 days to decide on this issue from the time he had authorized the Police to gather information until the decision to dismiss the criminal report was issued.
  3. According to the authorization of Prosecutor Munishi, Kosovo Police on 25 October 2017, in the Kosovo Archives, has seized the file of bar exam of the Chief State Prosecutor. On 26 October 2017, in the Ministry of Justice also seized the books of passing the bar exam for the period 1986-1992.
  4. The seizure was made without a court order. The seizure was committed unlawfully, making the evidence collected to be unacceptable in court.

Legal and procedural violations:

  1. According to the ruling on the dismissal of the criminal report, Prosecutor Munishi, the investigation has been oriented only with regard to the suspicion of committing the criminal offense “Falsifying of the official document” from Article 434, paragraph 1 of the Criminal Code of the Republic of Kosovo.[1]
  2. Based on the above elaboration, the use of the criminal offense under paragraph 1 of Article 434 of the Criminal Code of Kosovo can only be carried out by the responsible persons who have been authorized as officials in the Provincial Secretariat of Judiciary.
  3. The perpetrator or potential perpetrators of this criminal offense under the present Criminal Code are sentenced to imprisonment of six (6) months to five (5) years. “
  4. All actions of the Prosecutor Munishi and the Kosovo Police, according to the authorizations given by the Prosecutor Munishi, were undertaken in violation of the Criminal Code of Kosovo, as in this case the deadline for prescription of criminal prosecution has been reached regarding the investigations authorized by the Prosecutor Kujtim Munishi.[2]
  5. According to the Criminal Code of Kosovo, at any stage of the criminal proceedings, court and other criminal prosecution bodies as well as the bodies of execution of criminal sanctions are ex officio obliged to take care, to consider and to enforce the statute of limitations. Thus, the statutory limitation is expressed according to the power of the law (ex lege), in all cases when the statutory limitations expire.
  6. The time that has to pass to be done the prescription is called the deadline prescription. The duration of the deadline prescription period is defined depending on the amount of punishment foreseen for the criminal offense.
  7. The Criminal Code has defined the prescription of criminal prosecution, if it exceeds ten (10) years from the commission of a criminal offense punishable by more than five (5) years of imprisonment; or five (5) years from the commission of a criminal offense punishable by more than three (3) years of imprisonment.
  8. If the suspicions raised are that the file manipulation was committed in 1991, over 26 years have passed since suspicion of committing the criminal offense;
  9. If the suspicions raised are that file manipulation was committed in 1999 or 2000, over 16 years have passed since suspicion of committing the criminal offense.
  10. In each variant, Prosecutor Munishi has authorized investigations regarding a criminal offense that has already been prescribed.
  11. According to article 82 of the Criminal Procedure Code of Kosovo, the State Prosecutor, inter alia, by a decision dismisses the criminal report received by the police or other sources within thirty (30) days, if it is clear from the report that the statute of limitation for criminal prosecution has expired.
  12. Even with the legal obligation defined in this Article of the Code, Prosecutor Munishi and the Kosovo Police have collected information, seized material and questioned witnesses, in violation of the law.
  13. According to Article 83 of the Criminal Procedure Code of Kosovo, the police are obliged to act only according to the lawful requirements of the prosecutor.
  14. Kosovo Police has acted under the unlawful authorization of Prosecutor Munishi.

Limited Investigations by Prosecutor Munishi:

  1. Based on the Ruling signed by Prosecutor Munishi itself, the same has limited the investigations only with respect to paragraph 1 of article 434 of the Criminal Code of Kosovo.
  2. Prosecutor Munishi did not authorize investigations related to the suspicion of committing the criminal offense set forth in paragraph 2[3] of Article 434 of the Criminal Code of Kosovo, where State Prosecutor Aleksander Lumezi has been as suspected in public.
  3. The criminal offense foreseen for in paragraph 2 exists when an official person or a responsible person in his business activity uses a fake official or business document, an official register or an official document as genuine, or annihilates, conceals, damages or makes unusable in any other way official or business document, official register or official document.
  4. This proves that the Prosecutor Kujtim Munishi has never initiated an investigation against the Chief State Prosecutor, Aleksander Lumezi, respectively did not undertake investigative actions regarding the suspicion of committing the criminal offense defined by paragraph 2 of Article 434 by Chief Prosecutor Lumezi.
  5. Prosecutor Munishi, still not initiated the procedure related to this case, has directed the Kosovo Police to collect information only with regard to the offense that according to the law has been prescribed.
  6. Prosecutor Munishi did not issue a Decision to initiate investigations. The entire procedure conducted by the prosecutor Munishi in this case belongs to the pre-trial procedure.
  7. Although Prosecutor Munishi did not make a decision to initiate investigations, he questioned a number of witnesses, seized files, documents from the Kosovo Archives and the Ministry of Justice in violation of the law.
  8. With these actions, Prosecutor Munishi has violated the provisions of the Criminal Procedure Code, has violated the rights and freedoms of persons who have been summoned as witnesses and has seriously violated their legal security.
  9. According to Article 6 of the CPC, criminal proceedings are initiated only by a State Prosecutor’s decision when there is a grounded suspicion that a criminal offense has been committed.
  10. According to Article 7 of the CPC, the court, the State Prosecutor and the Police that participate in the criminal proceedings are obliged to accurately and completely certify the facts which are important for the lawful decision.
  11. Despite the fact that the suspicions raised in public are related to the suspicion of falsification of the State Prosecutor’s bar exam, the prosecutor Munishi has not taken any action regarding the revealing of the truth.
  12. During the entire handling of this case, Prosecutor Munishi, based on the decision to dismiss the criminal report, shows that he did not have any suspects.
  13. Article 136 of the CPC enables the expertise. Through expertise, it would be possible to make the expertise of the documents and the manipulated file of the Chief State Prosecutor.
  14. For this purpose, should be appointed a competent field expert with experience or with specialized training that is relevant and current.
  15. The expert should have analyzed the evidence provided (files).
  16. During the expertise, the expert should have used generally accepted practices in his field or have a scientific or technical basis.
  17. The expert should draft the report, which summarizes the methods used in the analysis and the conclusions.
  18. None of these opportunities defined by the CPC, prosecutor Munishi did not use them.
  19. None of the documents seized by Prosecutor Munishi, without a court order, were not part of the expertise.
  20. The case that has been handled by Prosecutor Munishi belongs to distant years, 1990-1999 until 2000.
  21. Judicial practice proves that in such cases, apart from evidences, records, decisive role in revealing the truth lies in the expertise of suspicious manipulated documents.
  22. The prosecutor ignored this legal obligation completely, prejudging the case.
  23. Prosecutor Munishi gave key importance to the evidences of Serbian officials, who during the nineties were appointed through violent measures installed by the Yugoslav state apparatus.
  24. The notarized statement by Gjorgje Aksic proved nothing more than his signature on a document that was presented to him in Belgrade, Serbia. He has not taken any responsibility for the originality of the document, but has only verified that the signature on the presented document belongs to him.

 

Seizure of files in violation of the law:

  1. In the ruling for dismissal of the criminal report, Prosecutor Munishi has authorized the Kosovo Police to seize the original files related to the bar exam files in the Kosovo Archives and the Ministry of Justice.
  2. In the ruling, nowhere is mentioned that the seized files were taken in accordance with Article 112 of the Criminal Procedure Code of Kosovo.
  3. This article defines that items that can be temporarily seized are items that may be evidence during a criminal procedure, objects or property that have enabled the commission of a criminal offense, or items that are considered material gains obtained by committing a criminal offense and for which the law foresees seizure.[4]
  4. The seized files were taken without a court decision.
  5. The seized files were held for more than five days, without a court decision.
  6. According to the Code, items, property, evidence or money may be subject to temporary restraint under the state prosecutor’s order that lasts no more than five days if authorized police officers learn about the item, property, evidence or such money during control or lawful detention.
  7. According to the Code, the state prosecutor requests a court order from the pre-trial judge.[5] This does not appear in the ruling that happened, so there was never a court decision.
  8. The state prosecutor may request the pre-trial judge to issue an order for the temporary seizure of property, property, evidence or money.
  9. Such a requirement must accurately mention the items, property, evidence or money and should describe how these items may be evidence of a criminal offense, such as these things, property or money may enable the commission of a criminal offense or such items, property or money constitutes a material benefit gained by a criminal offense.
  10. Evidence taken in violation of the provisions of criminal procedure are inadmissible when the Code or other provisions of the law expressly provide for this.
  11. The court cannot support its decision on inadmissible evidence.

[1] According to paragraph 1 of this article, the criminal offense exists when the official person, in the official or business document, in the register or in the letter, writes false data or does not record the relevant data, or with the official stamp certifies the official business document, the official register or a document that contains false data, or allows the compilation of document, record or letter with false content.

[2] The prescription of criminal prosecution consists in the fact that due to the expiration of the deadline foreseen by law, criminal prosecution cannot be undertaken and a punishment for a criminal offense that has been committed cannot be imposed on a person. If the prosecution is ongoing and if in the meantime it has come to a statute of limitation, the prosecution cannot be resumed.

[3] Paragraph 2 of Article 434 of the Criminal Code of Kosovo stipulates that “an official person who uses the official document, register or false official document as genuine in his business activity or who annihilates, hides, damages or in any other way 156 renders unusable the official document, register or official record, is punishable by the punishment referred to in paragraph 1 of this Article. ”

[4] Note: Interpretation of this provision according to the Criminal Procedure Code of Kosovo: According to the provision of paragraph 1, three types of items may be seized temporarily: a) items that may be evidence during a criminal procedure, b) items or property that enabled the commission of the criminal offense, or c) items considered as a material benefit gained by committing a criminal offense. Items that may be evidence in criminal proceedings are material evidence that have a special regime, if at the same time they are not items that are to be taken under the Criminal Code. Such items are not meant to serve directly for the argument purpose. It can be taken, for example, letters to enable the expert to compare the handwriting or signature and to give an opinion about the authenticity of the incriminated text.

[5] Temporary seizure of items, property, evidence or money is done by order of the pre-trial judge. However, for items that are subject of temporary restraint, for which authorized police officers learn in the case of lawful control or arrest, a temporary restriction may be made by the state prosecutor for a period not more than five days. Additionally, the State Prosecutor requests an order for their temporary seizure by the pre-trial judge. The prosecutor’s request must contain accurately the items, property, evidence or money that he thinks should be temporarily seized, and must describe how such items can be evidence of the criminal offense, how they enable committing a criminal offense, or how they constitute a material benefit gained by a criminal offense.