Pristina, December 24, 2019 – Kosovo Law Institute (KLI) reacts harshly to the practice installed by some judges in making decisions, which have no legal basis, by forcing media and civil society organizations who monitor court hearings to not identify defendants during their reporting and to report with initials.
KLI has recently encountered such a practice in the process of systematic monitoring of court hearings in criminal matters. In this regard, it is worth noting two high profile cases such as: “Visa fraud case”, where former deputy M.Z and two other individuals are accused of fraud, money laundering and tax evasion, and “The case of fake veterans”, where the former Prime Minister Agim Çeku and 11 others are accused of abusing official position or authority.
In these cases, judges have rendered decisions which are in contradiction with the spirit and principles set forth in the Constitution. According to the Constitution, trials shall be open to the public except in limited circumstances in which the court determines that in the interest of justice the public or the media should be excluded. Judges’ decisions to oblige the media and NGOs to report with initials violate the principle of publicity guaranteed by the Constitution.
The new approach of judges assigned to lead court hearings in criminal matters also is in contradiction with the Criminal Procedure Code itself, which states that “At any time from the beginning until the end of the main trial, the single trial judge or trial panel may exclude on the motion of the parties or ex officio, but always after it has heard the parties, the public from the whole or part of the main trial if this is necessary for: … protecting the personal or family life of the accused, the injured party or of other participants in the proceedings”. According to this provision, the Court ” may exclude the public from the whole or part of the main trial”, without even giving the possibility of obliging the media to report with initials.
The Constitution and the Criminal Procedure Code determine as a rule that a court hearing in criminal matter is public, and except in limited circumstances the public or the media should be excluded, only in cases when this is based on justice interest and as a measure is necessary.
Court decisions to report with initials also violate the Freedom of Expression and Freedom of Media, guaranteed with Constitution, according to which censorship is forbidden and no one shall prevent the dissemination of information or ideas through media, except if it is necessary to prevent encouragement or provocation of violence and hostility on grounds of race, nationality, ethnicity or religion. Judges’ decisions to report with initials can be considered as censorship and an obstacle to disseminating information, which is of particular interest to the public in Kosovo.
Through these unlawful practices, KLI assesses that judges have formally decided that trials are not closed, but in essence they have closed those trials, by not allowing the public to be informed for these cases, even though based on the criminal offences the defendants are charged with, these trials are of high-profile and are of particular importance to the public, given that they are also track record cases to assess the progress in the process of meeting visa liberalization criteria for Kosovo citizens.
KLI assesses that in these cases, the judges have not even given a single fact or evidence to justify why such reporting’s would affect the private life of defendants or witnesses. Despite the legal requirements and standards of the ECtHR, judges have not given any justification as to the weighting between the principle of hearings publicity, namely the public interest to be informed about these cases, and the protection of the privacy of defendants and witnesses. Likewise, judges have not provided any justification as to whether this measure to report with initials for parties involved in the proceeding is most appropriate or if it is necessary to achieve the intended purpose.
Based on this logic, the majority of hearings would have to be closed, considering that a large number of defendants would make an ungrounded claim that media reporting on his case would affect their private life. With regard to the protection of personal data, non-disclosure of the same ones is an obligation, whether or not there is a ruling of a particular court. Consequently, no party can be invoked in that reasoning.
KLI considers that these practices do not present transparency and accountability of the judicial system to the public. Moreover, such judgments only undermine the transparency for the public and present the most unnecessary precedent in the judicial system. Even more when the judicial system, based on local and international reports, continues to have significant problems with transparency and accountability to the public, media and civil society
KLI has continuously reacted for several cases of hearings, in which judges have built up unlawful and arbitrary practices, by totally closing them or forcing the media and civil society to report on certain parties with initials or by prohibiting the photographing or recording in hearings. All of these are summarized in the analysis published “Unlawful and arbitrary closure of court hearings to the public regarding criminal cases”.
KLI emphasizes that both local and international legal provisions as well as the ECtHR’s practice give vital importance to open judicial proceedings to public and interested parties, in order to ensure a fair trial, whose final purpose is to gain public trust in the independence and impartiality of the courts.
KLI reminds that the fact that an assigned judge has independence to decide, doesn’t make him immune to unlawful decisions for the closure of hearings that by the law are public, and even more to cases when the same ones exclude the public and media in completely arbitrary way, without taking any formal decision or oblige them to report with initials without having legal basis.
KLI assesses that publicity of the court hearings should be understood in that way that in any circumstance does not damage the administration of justice. On the contrary, as the ECtHR’s practice stipulates, it protects litigants against the administration of justice in a confidential manner and is one of the ways to maintain the trust in courts. Judges should be aware that publicity of the court hearings, according to ECtHR, is one of the elements that forms the right for a regular process.
For these reasons, it is an immediate and urgent request that the KJC, in cooperation with court presidents and supervising judges, handle these cases and take appropriate measures to stop this phenomenon. KLI requires accountability for all judges who are acting illegally and at the same time calls on all judges to understand that transparency in the administration of justice contributes to ensuring a fair trial, enabling the media to exercise their role as public controllers.