Fight of corruption in Kosovo, priority on paper

Pristina, 10^th December 2015 – Kosovo Law Institute (KLI), with the support of British Embassy in Pristina within the roundtable titled “Fight against corruption in Kosovo: Failures and Progress”, is published report of KLI “Fight of corruption in Kosovo, priority on paper” comprehensive evaluation report on efficiency of the prosecutorial and judicial system in treating of corruption cases. The following is presented executive summary and recommendations of the report.

Corruption continues to prevail in many fields and is big concern for the citizens of Kosovo. Index of corruption perception in Kosovo according to Amnesty International is 2.9 and is classified as rampant corruption level. Organization for cooperation and economic development, has reported also that “Kosovo remains tolerant against corruption in all levels, which means that the risk of being (or it is actually) “capture state” is high 3P. Beyond this perception, fight against corruption in Kosovo continues to be absolute priority for all state institutions. This fight has become political rectory by leaders of Kosovo, leaders of justice institutions, including international leaders of EULEX mission. Unfortunately, beyond this rhetoric there was no will and concrete results to fight corruption in Kosovo, especially corruption of high profile.

Lack of concrete results in fighting of corruption by responsible institutions, it has become obstacle on the road to the European integration. Kosovo remains the only place in the region that does not have visa liberalization. Citizens of Kosovo, remain the only one in Europe that movement right is limit, due to the failure of policy and justice system to perform duties and their responsibilities in accordance with the mandate to which they are elected or appointed.

Republic of Kosovo doesn’t suffer from the lack of laws and policies to fight corruption.

Suffers from political influence in justice system which is connected with the lack of will to support judicial and prosecutorial system with sufficient budget, resources that enable them to exercise their functions independently. Important factor why results miss in fight of corruption remains the lack of accountability and installation of impunity culture.

KLI as result of monitoring of performance of the prosecutorial and judicial system in handling of corruption cases has found that despite the adoption of laws and novelties in criminal justice, adequate policies for fight of corruption, the same does not apply in practice. Trend of unsolved cases of corruption by prosecutor is on the increase. Until the 4^th November 2013 were 516 unsolved corruption cases with 1682 persons, on 30^th September 2015 this number has increased to 636 unsolved cases with 1753 persons. This trend proves the lack of practical will to treat corruption cases with absolute priority. Fight of corruption remains only commitment and willingness on paper. From 4^th November 2013 until 30^th 2015, Basic Prosecutors and have been working on 1334 cases with 3308 persons, 766 of them with 1757 were solved. Characteristic of these cases is the way of solving them by prosecutors. From 1757 persons against whom cases have been solved, noticed the large number of closing cases against suspicious persons for corruption. From 1757 persons that have been subject of penal procedures for corruption, against 882 person’s cases are closed in prosecution. Respectively, prosecutors during this time period have raised indictments against 875 persons, have dismissed penal charges against 476 persons and have ceased investigations against 406 persons. Big number of closed cases in the prosecutor, proves some good parts, that justice system in Kosovo persecutes its citizens, or because the lack of expertise and professionalism of officials that initiate and investigate corruption cases, or institutions of justice in Kosovo are under high pressure from local and international factor to show results and under this pressure initiate big number of criminal procedures, which finally end closing cases and violation of rights and freedom of citizens. During this period KLI has identified 62 prescribed corruption cases, while only in the last six months of monitoring of the prosecutors, are identified 12 prescribed cases.

Tracking of high profile of corruption continue to remain the main challenge of prosecutorial system. Continuous lack of results for years and the implementation of selective justice in certain cases in pursuit of strong persons have affected in loss of truth of citizens in the prosecutorial system. Satisfaction of citizens with the work of the State Prosecutor in the period March – September 2015 has marked the largest decline of all time with only 12.8%.

KLI for biggest failures in fight of corruption of high profile addresses to EULEX, which till on June 2014 has led with SPRK and had exclusive competences in this field.

This naturally do not amnesty from responsibility local prosecutors in the SPRK. Performance of these prosecutors in fight of high profile corruption, results that is minimal, since same have managed to fulfill the annual orientation norm only 13.26 per cent. From 1^st of January 2015 till 30^th September 2015, SPRK has solved cases against 62 persons, from them against 51 persons has raised indictments, against 6 persons has dismissed criminal charges, and while against 5 persons has ceased investigations. From these cases, KLI has found that PS has published information’s for this period for raising of indictments only in five cases, where involved based on positions are: one (1) former President of Constitutional Court, one (1) former President of Municipality, one (1) former General Secretary, 18 municipal officials, six (6) owner of companies, one (1) director, one (1) institute director, three (3) managers, two (2) officials and one case against persons related to suspicion of misuse in former Ministry of Transport and Telecommunication. During monitoring corruption cases, KLI has found that PS in the publication of information and information of public implements selective justice, applying double standards for persons against which are raised indictments, where in certain cases publishes details of the names of the accused, while in other cases it saves them.

Monitors of KLI, from 1^st July 2015 till 30^th November 2015 have monitored 276 court sessions, including 171 corruption cases with 367 persons. Based on detailed analyze made on 60 monitored cases, results that in every phase of criminal procedure, has violated legal deadlines by the prosecutors and judges. From these court processes they analyzed 10 corruption cases, for which verdict is displayed. Case that lasted longer from time of raise of criminal charge till the announcement of the verdict in the first degree has taken time 1405 days (Basic Court in Pristina), while case that has taken the shortest time has been 281 days (Basic Court in Ferizaj). While monitoring these cases, KLI finds that profile of person’s subject of court procedures were only 4 high officials, from them two municipal presidents, one former member of the KJC and president of PRB, while the rest of the accused are mainly low profile eventually middle profile.

The same problems facing prosecution system also faces judicial system regarding treatment with priority of corruption cases. For addressing these subjects seriously, KJC on 25^th September 2015 has approved an action plan, through which are identified all corruption cases in courts and same are set to be processed.

Disrespect of legal deadlines and policies for fight of criminal acts of corruption affects in the violation of human rights and freedom and the amnesty of persons involved in corruption.

Delay of solving cases for years in the institutions of justice continues to remain biggest failure of this system in realizing of citizens’ rights of the Republic of Kosovo, which are guaranteed with the Constitution of the Republic of Kosovo. KLI estimates that promotion of criminal legislation has not responded to circumstances and existing conditions of justice system and has lacked the political will that the same to be changed positively to enable the implementation of the codes in practice. Otherwise, if there was such a will of legislative and executive power, judicial power would have the opportunity to prove himself, recovering, to offer equal and impartial justice for all citizens of Kosovo in the same manner, respectively protecting freedoms and rights of citizens, implementing with efficiency and effectiveness provisions of two codes, to treat cases in a reasonable time in accordance with international standards and obligations defined with Constitution and Code of Criminal Procedure. In order to address of this case not only in corruption cases but also to other criminal offense, it is necessary that Ministry of Justice, to start process of review of criminal justice for improvement of approach services by the institutions of justice.

Also regarding the seizure and confiscation of material benefit gained with criminal offense, in cases of corruption that has seen no progress. Prosecutors still didn’t found the way to apply law provisions applicable regarding this field, important. Reporting issue in public about seizure and confiscation of gained material benefits through criminal offenses has created misunderstanding about reality of results related with criminal offense of corruption. Initially, KLI estimates that performance in fighting of the offenders of criminal offenses that have gained material benefit through criminal offense it must be measured exclusively with final judgments that lead confiscation, opposite; procedural actions are not representative to show the real situation, always based on the bad practices built so far.

KLI monitoring shows that has a minimum utility result of seized and confiscated related with criminal offense of corruption, but correct data for this category are not systemized in any institution of justice, although are proclaimed mechanism in practice to track these cases.

RECOMMENDATIONS

Ministry of Justice recommended to establish a working group composed with representatives of MJ, KJC, KPC, experienced judges and prosecutors, experienced foreign experts and expertise by criminal law, expert from civil society for review of criminal justice. Working group recommended to have enough time to make an evaluation of the current situation regarding criminal justice in Kosovo, to identify problems that arise in practice by law enforcements and to come up with a detailed report regarding actions and steps that must be taken in order of right implementation of criminal law in Kosovo, respecting human rights and freedom, increase of efficiency, transparence and accountability. Review of criminal justice recommended to include also functioning and results of each mechanism or established office through cooperation memorandums or any other strategic document in order to increase the efficiency in fighting of corruption.
KJC recommended to monitor in proactive way Basic Courts in the implementation of their obligations arising from the action plan for the treatment of corruption cases.
Basic Courts in whole Kosovo, especially Basic Court in Pristina recommended that to treat corruption cases with absolute priority.
Basic Court in whole Kosovo, especially Basic Court in Pristina, recommended that cases which appear from the SPRK, to treat them with absolute priority, ensuring that appeared indictments filed by this prosecutor to treat them in full compliance with defined deadlines with Code of Criminal Procedure.
Basic Court in whole Kosovo to provide full transparency for the public, media and civil society in monitoring of corruption cases in accordance with the applicable law.
KPC will and commitment expressed through approved policies in Council, regarding fight of corruption in Kosovo to implement it in practice, with concrete actions.
KPC to build efficient mechanism of surveillance and control of the work of SPRK and BP in treating of corruption cases, ensuring the preservation of individual independence of the prosecutors while treating corruption cases.
SP and KPC recommended taking urgent measures provided by law, to fight internal corruption in the prosecutorial system in Kosovo, respectively to stop current practices by not punishing the prosecutors, who have failed to implement the action plan.
KJC and KPC in cooperation with international partners that support juridical and prosecutorial system of Kosovo recommended to establish a mixed Commission with locals and internationals, to analyze all disciplinary cases in DPO, which may be prescribed as a result of change completion of law of the judiciary. Commission must prepare detailed report regarding number of prescribed cases, type of prescribed cases, and eventual responsibility of the officials in DPO, regarding these cases.
SPRK recommended to initiate urgent investigations regarding recent appointments in the independent boards and in regulatory authorities. SPRK to investigate regarding process of appointment of members of these boards if procedures and applicable law were respected.
SPRK recommended to treat only cases of high corruption, corruption cases with complexity and sensitive.
State Chief Prosecutor to cancel Decision with number A. nr.404/2015. 6^th October 2015 for creating of a supervisory commission for criminal cases of corruption composed with Deputy State Chief Prosecutor, Sevdije Morina and three prosecutors of the State Chief Prosecutor’s office Besim Kelmendi, Lulezim Sylejmani, and Laura Pula. This decision has defined that Commission has the duty to visit the entire prosecutor and ask each prosecutor for corruption cases working on it. After verification, Commission has a duty to prepare report to State Chief Prosecutor. Such a decision is contrary to the spirit of the law for State Prosecutor and serious violates the autonomy of prosecutors in the treatment of individual cases and it can be considered direct interference in the work of prosecutors.
KPC in cooperation with KJC, institutions and other agencies that obey the law must have more proactive role in increase of cooperation, communication and coordination in corruption cases.
KPC recommended to make a comprehensive evaluation of implementation of the obligations deriving from Action Plan and the same must be completed in the fields where there are presented obstacle in its implementation, especially attention should be paid to the quality of criminal charges dismissed and cases where investigations have been terminated in order to solve this problem and to enable the creation of adequate policies for fight of corruption.
KPC recommended that through amendment of Action Plan, to make categorization of level of corruption to Prosecutors, KLI repeats recommendation for three category that will include:

Category 1 recommended to include corruption cases that fall within the competence of the SPRK, which must have absolute priority. In this category should be entered cases where suspects for committing of criminal act of corruption are official persons that exercise higher functions, as they are laid in the guideline for setting of corruption of high level signed by the State Chief Prosecutor and the Chief Prosecutor of EULEX Prosecutors:
Category 2 of corruption cases recommended to include all cases where the monetary value of abuse crosses 100.000 Euro and these cases should have been treated with absolute priority.
Category 3 of corruption cases recommended to include all cases that are filed before year 2013, and which would have to set a deadline within maximum one year that same to be completed.
KPC recommended to prepare formulary to be included in the database, where will register solved cases, including positions of persons against whom cases are solved (if criminal charges are dismissed, investigations have been ceased or they raised indictment) in order to enable clear identification of the results of fight against corruption.
SP to identify cases related with public procurement and same to be treated by experienced prosecutors and anti-corruption experts in SPRK, in close coordination of activities and actions between the prosecutor of the case with the police and other independent and specialized agencies, in dealing with these cases.
KPC to organize mandatory training with all prosecutors regarding the implementation of obligations that arise by the law for demand submissions for seizure and confiscation of gained property with criminal act of corruption.
KPC urgently to announce concurs for the prosecutors in the SPRK, according to the foreseen procedures with law for filling allowed positions in this prosecution.
KPC urgently to announce concurs for appointment of Chief Prosecutor of the SPRK.