Pristina, 26 shkurt 2019 – The Kosovo Law Institute (KLI) reacts to the policies of the Ministry of Justice (MoJ) in drafting the Project Code of Criminal Procedure of the Republic of Kosovo, which has made essential changes in the criminal procedure, extending the deadline of criminal investigations through which are violated the human rights and fundamental freedoms guaranteed by the Constitution of the Republic of Kosovo and with all international standards and practices applicable in Kosovo.
Deadline of criminal investigation from two extends to four years – violation of human rights and fundamental freedoms
The KLI expresses concern with this policy approach of the MoJ, which in the name of increasing efficiency in combating crime, tend to justify the failures of the justice institutions, in this case the police, the prosecution and the courts in combating criminality. In this regard, the MoJ has proposed substantial legal changes in the criminal procedure, offering commodity to the justice institutions in treating cases, due to the extension of the deadline of criminal investigations from two (2) to four years (4). In this way, MJ justifies the failures of the justice institutions and sacrifices the principles and standards enshrined in the Kosovo Constitution regarding human rights and freedoms in criminal proceeding.
The KLI estimates standards built in the Criminal Procedure Code of Kosovo, which is in force, which recommends to advance, but not to be violated to human rights and fundamental freedoms, as intended. With the Criminal Procedure Code in force, the criminal investigation from the moment of initiation may last up to two (2) years and six (6) months. Primarily criminal investigation initiated ends within two (2) years. However, based on the request of the state prosecutor due to complex investigations and other causes defined by law, the pre-trial judge may authorize the extension of the investigation for another six (6) months, ie maximum up to 30 months or two and a half years.
While now, according to Article 157 of the Project Code of Criminal Procedure of Kosovo, which is now in the procedure of approval in the Assembly of the Republic of Kosovo, the investigation from the moment of initiation can last up to four (4) years.
Basically according to this Project Code, the initiated criminal investigation must be completed within two (2) years. However, with the request of the state prosecutor due to complicated investigations and other causes defined by law, the pre-trial judge may authorize the extension of the investigation for another six (6) months. The prosecutor based on the reasons defined and under the same conditions, may request further extension from six (6) months up to a maximum of two (2) years after the deadline of (2) years.
Consequently, the Republic of Kosovo through this Project Code of Criminal Procedure is attempting to extend the deadline of investigation from two (2) years and six (6) months to four (4) years. The KLI estimates that this is unacceptable and seriously violates human rights and fundamental freedoms, by violating seriously the constitutional principles, standards and international practices applicable with the Constitution of the Republic of Kosovo.
KLI reminds the deputies of the Assembly of Kosovo that with Article 31 paragraph 2 of the Constitution of Kosovo stipulates that everyone enjoys the right to fair and impartial public scrutiny reagrding decisions for the rights and obligations or any criminal charge that is raised against her/him within a reasonable time, by an independent and impartial court, established by law.
Human rights and freedoms are guaranteed by the Constitution of the Republic of Kosovo
The Kosovo Constitution guarantees and promotes human rights. Article 22 of the Constitution defines the European Convention on Human Rights as a fundamental part of the rule of law in Kosovo. Article 53 of the Constitution defines that human rights and fundamental freedoms guaranteed by the Constitution, are interpreted in harmony with the judicial ruling of European Court of Human Rights (ECtHR). Moreover, the Constitution gives supremacy to the practice of ECHR in report for local law.
Since 2013, the KLI systematically monitors the justice system in treating with criminal cases. As a result of systematic monitoring, the KLI has published dozens of periodic reports where are included findings from the practice, including research and analysis related to the length of criminal proceedings. In the focus of research and analysis has been the implementation of the provisions of the Criminal Code and the Criminal Procedure Code in treating with cases, including respecting the legal deadlines and respecting the rights and freedoms of defendants in criminal proceedings, initial actions or criminal and preliminary procedures.
The KLI findings show that, despite the solid legal framework and in line with international practice and standards, justice institutions in Kosovo, such as the prosecution and the court have not been able to deal with criminal cases in a reasonable deadline, on the contrary, the citizens of Kosovo have been faced for years and not rarely for decades with preliminary and criminal procedures in the prosecutions and courts of Kosovo.
KLI, as the only organization in Kosovo that systematically monitors all cases of corruption, highlightes that the Criminal Procedure Code, offers to the state prosecutor discretion regarding the initiation of investigation or prosecution of the criminal offense. KLI during the process of monitoring cases of corruption but also characteristic criminal offenses found that a large number of cases reported to the police or prosecution that belong to the preliminary phase or the phase of investigation in criminal proceedings are closed by the prosecution without judicial control.
In three years (2015, 2016, 2017) in the preliminary procedure, without passing through judicial control 889 cases with 1553 persons were closed. While, during the same period, the State Prosecutor closed cases of preliminary and criminal investigations against 1794 persons reported regarding suspicions of corruption criminal offenses. Of them, against 1006 persons, prosecutors have dismissed criminal reports, whereas against 788 persons have ceased investigations.
The KLI has raised concern about the lack of judicial control in the cases of cease of investigations and dismissal of criminal reports, control which based on the law in Kosovo, does not exist at all. The prosecutor notifies the court only with regard to the cease of the investigation, while the judge has no control or competence to assess whether the prosecutor’s decision is based on the law, and whether the facts and evidence gathered are sufficient to proceed with the case at trial. In the cases of dismissal of the criminal report, the court does not receive any notification regarding the closure of the case. Against the decision of the state prosecutor, no appeal can be filed either by the Applicant of the criminal report or the injured party from the criminal offense.
Furthermore, the Criminal Procedure Code does not allow a private lawsuit or a subsidiary lawsuit, since the Criminal Code does not foresee any criminal offense, which is prosecuted according private lawsuit. Applicable legislation in Kosovo does not allow a complaint against the prosecutor’s decisions in cases of dismissal of criminal report or cease of investigations. In this regard, the prosecutor’s decision to close cases at this stage of criminal proceedings, is final. Therefore, neither the deadline of criminal investigations, which is currently in the Criminal Procedure Code, does not guarantee legal certainty for the rights and freedoms of citizens of Kosovo, because in practice against them are initiated and developed procedures especially those preliminary for years and decades, by keeping them blackmailed by their presence in criminal records.
The KLI estimates that such a practice installed by the justice system contradicts the values, principles and practice of the ECHR, affecting that the same institutions that by the Constitution and the law are established to offer justice, the same ones in practice also be violators of human rights and freedoms.
In contemporary states, which are based on the values of guaranteeing and promoting human rights, the criminal procedure codes are a guarantee against the arbitrary enforcement of criminal laws. They are designed to implement the right of suspected persons and defendants in criminal cases for fair, impartial, independent and reasonable time at all stages of the criminal proceedings, starting with initial contact with the police and continuing during the arrest, investigation, imposing sentence and remedy. Ignoring procedures and treating with cases within a reasonable time may result in a violation of the rights of a fair process of the defendants, protected by Article 6 of the European Convention on Human Rights and Fundamental Freedoms, and Article 14 of the International Convenant European Convention on Civil and Political Rights. The international instruments in question are directly applicable in Kosovo.
International standards and practices for reasonable trial in time
Also, the right to a process within a reasonable time is also guaranteed by Article 6, paragraph 1 of the European Convention on Human Rights. Despite the fact that the ECtHR in its practice does not issue deadlines, how long a criminal proceeding should be lasted, the violation of Article 6, paragraph 1 of the Convention regarding the treatment of a criminal case within a reasonable time is treated case by case and based on several criteria, including the nature of the case and the degree of complexity, behavior and access of authorities such as the prosecution or the court in treating with the case as well as other criteria that may have an impact on the treating of the case within a reasonable time .
The ECtHR has not predetermined any way or measure relating to the trial within a reasonable time and there is no guideline regarding the measures that States should take to address this issue. According to the ECtHR, states should choose appropriate ways or measures within their legal systems in such a way that each of them guarantees the right to a final judicial decision within the reasonable timeframe in the realization of citizens’ rights. Some European countries have built legal systems that have affected to increase cases of violation of the right to a trial in a reasonable time, and that such a thing is tolerated by the state, and where long court proceedings have begun to be institutionalized, as a unwritten rule.
Such practices pursued by certain states according to the ECtHR violate and contradict the European Convention on Human Rights. When such a “practice” forms the basis of a case, the ECtHR does not review the specific circumstances of the case or other constructed criteria, but finds a violation of Article 6 paragraph 1 of the Convention, finding that the lack of undertaking of appropriate general measures by States to correct the situation that affects in the length of court proceedings are adequate evidence of non-compliance with the Convention.
In this regard, Kosovo through the current approach to extend the timeframe in the phase of the investigative procedure for two (2) years as it is currently with the Criminal Procedure Code in four (4) years with the current draft Criminal Procedure Code enters within states that build practices that are contrary to the spirit of the European Convention on Human Rights, the practice of the ECHR and also contrary to the Constitution of Kosovo itself. Kosovo with such an approach institutionalizes the lengthening of court proceedings in criminal cases, violating the principle of treating cases within a reasonable time frame.
Also, the Commission of Ministers of the Council of Europe has established the European Commission on Efficiency in Justice (named as CEPEJ) in September 2002, which through monitoring the situation on the field, as well as collecting and processing statistical data provides detailed information on the recognition and the improvement of structural defects and specific problems of each stage of the legal process with the final aim of respecting the right for a fair process according to Article 6 of the European Convention on Human Rights.
The KOSEJ project in Kosovo, according to CEPEJ methodology and approach, has compared the data of the judicial and prosecutorial system in Kosovo with the latest CEPEJ report published in 2016, which presents the data of the judicial and prosecutorial system in EU member states. From this comparison, it turned out that the timeframes recommended for completing a criminal case in EU member states is 133 days whereas in Kosovo it lasts an average of 244 days. This means that even with the deadline of investigations defined in the applicable Criminal Procedure Code, the prosecutorial and judicial system manages to complete a criminal case on average with a delay of 111 days compared to the time recommended in the EU member states for completion of a criminal case. Now with the proposed amendments to the Project Code of Criminal Procedure it is required to allow for an increase of the time for resolving a case for another 180 days in addition compared to the applicable Criminal Procedure Code.
In this regard, the KLI calls on the deputies of the Assembly of the Republic of Kosovo, that during the review of draft Criminal Procedure Code to take into account the practice of the ECHR, and most importantly the legal certainty for the citizens of Kosovo, for a trial in a reasonable time. The Assembly of Kosovo can not that in the name of combating criminality, to justify failures of the justice institutions, in this case the police, the prosecution and the courts in treating with the cases efficiently and professionally. These failures can not be justified by making legal amendments, through which are sacrified the principles and standards enshrined in the Kosovo Constitution regarding human rights and freedoms in criminal proceeding.