Pristina, 17 April 2020 – On 15 April 2020, the Ministry of Health brought a Decision on prevention, fight and elimination of the infectious disease COVID-19 for respective Municipalities. This decision sets forth a series of measures that aim at protecting the life and health of citizens. In the meantime, the decision provides that non-compliance with the foreseen measures shall be considered according to the law, as an administrative minor offence and shall be punished with a fine from 1,000 Euro to 2,000 Euro for natural persons and from 3,000 Euro to 8,000 Euro for legal entities, whereas the person in charge of the legal entity shall be punished with a fine from 500 Euro to 1,500 Euro. In full accordance with the Law, the fines shall be imposed by the competent Inspectorate.
Reports of the Kosovo Police indicate the arrest of persons for non-compliance with the Decision of the Government, in some cases by treating the violation of citizens as a minor offence, and in some other cases as criminal offence for non-compliance with health provisions during the epidemic. Such an approach clearly indicates the legal uncertainty prevailing in the country.
Without prejudice to the legality of the above-mentioned decision of the Ministry of Health, considering that every decision is lawful unless otherwise declared by the competent courts, and without prejudice to the undertaken measures, their legitimacy and the need for the pandemic phase which is indisputable, it is considered that the arrest of citizens for non-compliance with measures set forth in the Decision of the Ministry of Health is an unlawful act and severely violates rights of citizens of the Republic of Kosovo.
The Decision of the Ministry of Health for prevention, fight and elimination of infectious disease COVID-19, qualifies as a minor offence actions of persons who act in non-compliance with this decision, whereas in the other hand, the Kosovo Police together with the State Prosecutor are treating these actions as criminal offence with reference to Article 250 of the Criminal Code, which provides that “Whoever during an epidemic of a contagious disease fails to comply with orders or other decisions issued on the basis of provisions of the competent authority which establishes measures aimed at fighting or preventing the disease shall be punished by imprisonment of up to two (2) years.”.
According to this wording, in order to consume the act at stake, the blank norm shall be applied, and which leads to the decision of the competent body providing for measures for fighting the disease. The competent body, in this case, the Ministry of Health set forth preventive and fighting measures against the diseases and in its ruling, which by its character is prescriptive, provides that the actions of persons who are non-compliant with this decision are qualified as minor offence, by providing for Sanitary Inspectorates, and not the Kosovo Police as the competent authority for overseeing this decision.
In this regard, it shall be mentioned that the principle of the legality is the key legal principle in criminal matters, which is enshrined in the system of the Republic of Kosovo, according to which no one can be punished for a criminal offence, which has not been incriminated as such by the law.
The principle of legality is a strong pillar of the safeguard of fundamental human rights and freedoms against arbitrary decisions of the state bodies. The legality as a fundamental principle protects and strengthens human rights by obliging on the other hand state bodies to conduct procedures based on professionalism and maturity in full compliance with the law. This principle is not violated only in cases when persons who have not committed a criminal offence are held criminally liable and hence convicted. Such a violation by state bodies can also occur by the analogy, which according to our system is in principle prohibited; however exceptionally the analogy is permitted in few cases when a preliminary decision of the competent body so requires in order to shape the constitutive elements of the criminal offence.
The Criminal Procedure Code in article 2 provides the postulate of the principle of the legality, according to which in cases when there are uncertainties with regard to the definition of the criminal offence, this uncertainty shall be interpreted in favor of the person. Usually, the uncertainty of incrimination of criminal offences happens when the Criminal Code leads to the application of another law in order to shape the elements of the criminal offence. Article 2 of the CPC provides that “the definition of a criminal offence shall be determined in a correct manner and interpretation by analogy is not permitted. In case of uncertainty, the definition of the criminal offence shall be interpreted in the favor of the person against whom the criminal procedure is conducted”.
Further, Article 3 of the Criminal Procedure Code provides for the principle “in dubio pro reo”, which provides that “Doubts regarding the existence of facts relevant to the case or doubts regarding the implementation of a certain criminal law provision shall be interpreted in favor of the defendant and his or her rights under the present Code and the Constitution of the Republic of Kosovo”.
Based on the above-mentioned, competent institutions shall be careful with the application of the provisions in force, and shall act in compliance with those provisions, by thus prohibiting the practice of arrest and detention of citizens of the Republic of Kosovo for actions which constitute minor offence and not criminal offence.
In lieu wit this, the Panel has also analyzed the practice in some of the European and other countries, by taking into account measures foreseen by those countries, in order to review and present sanctions that each of these countries have foreseen in case of violation of the measures aiming at prevention of the pandemic COVID-19 by its citizens.
- ITALY
Violation of measures set forth by the Italy sanctions Italian citizens with fines ranging from 400 to 3,000 Euro and imprisonment up to three months.
- AUSTRIA
Austria has set forth fines ranging up to 3,000 Euro for persons who do not respect state decisions related to quarantine during this time period.
- FRANCE
In France violation of quarantine rules costs its citizens with fines ranging from `35 to 3,700 Euro as well as imprisonment up to six months in case or repetition or in cases several breaches have been committed.
- UNITED KINGDOM
Police in this country are entitled to impose fines starting from 60£.
- BELGIUM
Breaches of restrictions in the movements of citizens are punishable only by fines.
- HUNGARY
This is the only country that foreseen the imprisonment and not punishment by fines. In case of violations of quarantine rules, a punishment up to 8 years of imprisonment is foreseen.
- RUSIA
Violation of state quarantine measures is sanctioned with fine ranging from 12.5 Euro up to 499 Euro.
The analysis of the practice in different countries indicates that a majority of the countries have foreseen fine sanctions against violations of measures for prevention of COVID-19, and certain world organizations whose role is to advocate on the respect for human rights, have continuously called upon to refrain from imprisonments in these circumstances. Above all, such a thing has been requested due to the risk of wider spread of the pandemic, especially by taking into account conditions and the population of correctional institutions in all countries concerned.
Recommendations for Police:
- Stop arresting and detaining people for minor offences.
- Kosovo Police in cooperation with rule of law institutions to issue administrative fines in compliance with the applicable law. This has, for example, been done already in several large US cities.
Recommendations for Prosecutors and Judges:
- Prosecutors and Judges must ensure that during this time that fundamental human rights and freedoms are respected.
- Do not request or impose pre-trial detention except in extraordinary cases.
- Do not require in-person check-ins during the pre-trial period (ask for phone or other types of remote supervision) and no not impose any kind of work or treatment requirement (these may not be available).
- Do not penalize insecurely housed people or foreign citizens by considering them to be de facto flight risks.
- Do not extend pre-trial detention orders without ensuring that this is strictly necessary and that no alternatives are possible in light of changed public health conditions
- Examine current rosters of prisoners held pre-trial and pro-actively release as many as possible, prioritizing those with health concerns and old age.
Recommendations for Defense lawyers:
- Argue vociferously for unconditional release in every case due to the risk to public health. Work with your colleagues to share evidence and template briefs, as lawyers have done in Belgium and France for example.
- Insist that the court explain (on a case by case basis) why an alternative to detention is not feasible, in the light of the risk to the person’s life by placing them in detention
- File appeals immediately where this is not done.
- Insist on free phone and video calls with detained clients to continue to fulfil duties whilst visiting may be restricted due to health concerns.
Recommendations for Prison Administrations:
- Ensure that people who are incarcerated pending trial are able to meet their lawyers in person and, where this is not possible, provide for unfettered, free access to confidential telephone lines and video links to enable detainees to exercise their right to access a lawyer.
- Bans on visitation by lawyers and friends and family of prison residents should be limited to specific risks and limited in time to enable in-person access whenever possible
- Provide protective gear in lieu of limiting access to lawyers and observers.
- Prison monitors should have unfettered access to all facilities including quarantine units.
Kosovo Law Institute in cooperation with CLARD, Fair Trials Europe and Netherlands Helsinki Committee, are in the process of implementing the project on “Advancing Criminal Procedural Rights”, supported by the Netherlands Embassy in Pristina through the MATRA programme. Within this project, he Legal Expert Advisory Panel in the Republic of Kosovo (LEAP Kosovo) was established.