October 10, 2012 – Kosovo Law Institute (KLI) expresses concern about two draft laws processed in the Assembly of Kosovo, which will be discussed for the first time by deputies at the session of October 11, 2012 (Thursday), namely points 6 and 7 of the agenda: Draft law on Salaries of Public Functions and the Draft Law on enhanced competencies for the Confiscation of property benefited through Criminal Offense. The KLI has highly estimated the commitment to regulate and complement of legal infrastructure in compliance with EU standards, but has strongly opposed the ways these two draft laws are compiled, that regulates different areas of the justice system and such as are only will cause damage. Therefore, the KLI requests from deputies of the Kosovo Assembly that these two draft laws should not be processed at all and returned in order to be improved properly.
The Draft Law on Salaries of Public Functions –the categorization made in this draft law openly discloses the ongoing tendencies of executive power to degrade judicial power. In 2011, entering into force of certain provisions of the Law on Courts and the Law on State Prosecutor, which enabled the leveling of salaries of judges and prosecutors to those of the executive, a major step was reached towards the equality of powers and the realization of the separation of powers as guaranteed by the Constitution of the Republic of Kosovo. However, the draft law on the salaries of public officials in the way they are drafted turns back the progress made in establishing the balance between the powers in Kosovo.
The new salaries categorization according to this draft law again devalues the holders of judicial power over other powers, contrary to the Basic Principles on Judicial Independence approved by the General Assembly of the United Nations.
In this case, the KLI strongly supports the reaction of Kosovo Judicial Council to the New Draft Law on Salaries of Public Functions, which states that such categorization revenues violates the principles of the equality of powers guaranteed by the Constitution, degrades the position and authority of the judiciary and reduces public confidence to the administration of justice.
It is unacceptable to continuously create policies and laws without consultation and without coordination with the authorities of the judiciary, especially in cases that have a direct impact on this power. Taking such steps by government authorities presents a tendency to create subordinate dependence and influence in the judicial power. The KLI calls for a reformulation of this categorization in order to reflect the principle of the equality of powers guaranteed by the Constitution.
The Draft Law on expanded competencies for the confiscation of property benefited by Criminal Offense – does not enable improvement of better functioning of the justice system about confiscating properties. The same issues presented in the draft law are regulated by other basic laws such as the Criminal Code and the Criminal Procedure Code. Therefore, these laws should be amended and supplemented, and not to create a new law that will not produce any effect for more effective law enforcement, in this case in terms of seizure of property created through illegal resources.
Based on the current course of prosecution and judging of corruption cases and organized crime, it turns out that in Kosovo cannot be talked about the high degree of informal economy and illegal activities. On the other hand, for many properties (including various assets and other properties) realized over the years, there is no coverage that is justified from legitimate and taxed income. Therefore, in such a situation, laws and policies should aim to influence in this aspect and enable Kosovo to have as much capital as it is generated by lawful income. Consequently, the draft law has failed since the beginning, as it tends to be limited to cases where the person was found guilty, by not bringing anything new in the fight for confiscation of illegal assets.
Current conditions and circumstances as well as the fragile functioning of the justice system, make it impossible for an efficient fight of prosecutors to provide evidence that interconnects property gained unlawfully by committed crimes. The burden of evidence would have to go to the defendant because only in this way it will be possible to fight the unlawfully gained properties. The above mentioned law should enable fighting unlawful properties, orienting the fight against such properties and not only against the properties of persons related to criminal activities.
The reasoning of the Ministry of Justice that if the burden of evidence is transferred to the defendant seriously endangers the violation of the rights of citizen, does not stand and this is proven precisely in this draft law, where at a stage of the procedure (Article 6), the burden of evidence passes to the defendant, who within 30 days must prove the legality of his property. So, the burden of evidence is thrown at the defendant while this is seen as problematic in other cases for the creation of a law that will completely regulate the confiscation, thus in civil proceedings. This provision basically creates a paradox about executive insistence, which through this draft law has taken care to protect citizen’s rights, by presenting double standards. Through this draft law all unlawfully gained properties will be amnestied as the persons involved in the crime have the opportunity that at any moment not to be in possession by any tangible property.
The Republic of Kosovo the issue of confiscation of unlawfully gained property should be regulated according to its needs and not proclaim various standards by the executive, to justify that confiscation cannot be done in our country through civil proceedings. In this way it is done in countries such as Italy, Great Britain, or USA etc.