Pristina, 10 August 2019 – Kosovo Law Institute (KLI), on Saturday held a press conference, in which it published the report: ”Unlawful and arbitrary closure of public hearings in criminal matters: analysis of ECtHR legislation and practice on the public nature of court hearings and bad practice created by the Justice System in Kosovo”.
Betim Musliu, Senior Legal Researcher at KLI stated that during the systematic monitoring process of court hearings within the criminal field, KLI has evidenced cases of unlawful and arbitrary closures of schedules court hearings, information that is important for the public, media and civil society. “It should be noted that in general all court hearings within the criminal field are open to the public and media. However, we have evidence through monitoring that some cases where judges close court hearings in an unlawful and arbitrary manner and have established bad practices through requests made to court researchers and journalists”.
Gzim Shala, researcher at KLI, stated that in the legislative aspect, Kosovo has succeeded in approximating the legal framework regarding the transparency and publicity of the work of the courts, in accordance with international practices and standards applicable in Kosovo or in which Kosovo aspires to join in the future, such as the states within the European Union. “In this regard, the practice of the European Court of Human Rights (ECtHR), whose jurisprudence in the constitutional system of the Republic of Kosovo is mandatory, has set standards in this area”.
Shala state that legal provisions, both domestic and international, as well as the ECtHR’s practice give vital importance to open public and stakeholder litigation to ensure a fair trial, with the ultimate aim of gaining public confidence in independence and the impartiality of the courts, the judges of the judicial system of the Republic of Kosovo show that they are not prepared yet and do not understand their obligations and responsibilities in this field. “This is because a certain number of criminal hearings in the judicial system that KLI systematically monitors are closed to the public by the judges, and in such cases, the public, media and civil society do not have the written decision of why the hearings were closed, insofar as a reasoning, the decision is often contrary to the principles set out in the Constitution and the CPCRK. Regarding hearings on the requests for the imposition of security measures, some courts have instituted an unlawful practice, qualifying these hearings as principally closed, and creating diversion in dealing with this matter within the courts of the Republic of Kosovo”.
Betim Musliu has elaborated some of the analysed cases within the KLI report, in which judges have decided in an unlawful and arbitrary manner. “KLI court researchers have evidenced cases where judges have cases where judges have excluded the public and the media without making a well-reasoned written decision, then approving defendants’ requests without a legal basis and without issuing a decision, requiring the media to report in certain cases with initials, decision cases paradoxical of judges, where they allow monitoring and reporting from the hearing but do not allow camera and other arbitrary decisions. ”
For all these cases of unlawful and arbitrary closure of curt hearings, according to the researcher Justina Frrokaj, there has been no proper institutional response from the responsible mechanisms in the judicial system. “KLI is constantly expressing concern about the lack of transparency and accountability in the judicial system and in this regard, in these cases identified in our monitoring process, there has been no move towards holding these judges accountable for closing hearings in an unlawful manner. This practice, as the cases analysed by KLI must serve all judges for not acting in this manner, jeopardizing one of the basic principles of a fair trial that is the principle of publicity”.
Frrokaj stated that KLI requests that the mechanism for accountability through Court Presidents and Kosovo Judicial Council to be efficient in addressing these cases in order to ensure that one of the basic principles of a fair trial is publicity. Frrokaj has presented the main finding and recommendation of the report that are as follows:
Conclusions
›In principle, each hearing is open to the public, media and civil society. Cases where they are closed are exceptions, the circumstances for which cases are explicitly mentioned in CPCRK.
›For circumstances referred to in the CPCRK for when hearings can be closed for the public, media and civil society, is not sufficient enough that court decisions to reference template circumstances, but the circumstances must be justified through in depth evidence, so that through a decision to create trust to the public that closing a certain hearings is a fair and legal action.
›Public, media and civil society exclusion without a written decision, in the least represents arbitrariness.
›Pursuant to CPRCK, in principle, court hearings for the review of requests for the assignment of security measures are open. For this reason, the disparate practice created within the judicial system, where some courts are public and in some are closed, is unacceptable. Regarding this created confusion, the KJC is also obliged to discipline judges in terms of implementation of legal obligations.
›Regardless of the fact that judges render decisions if a hearing will be public or closed, in the essence of good administration of justice, prosecutors must also contribute. In this regard, they should engage that in cases where a request to close a hearing has no legal basis, prosecutors must oppose it. Likewise, in cases where hearings are closed in violation of the law, prosecutors must appeal this decision to the Court of Appeal when appealing the final judgment.
›The Court of Appeal and Supreme Court have an obligation to establish legal and fair standards in the treatment of cases. Pursuant to this obligation and in regards to public closing hearings contrary to the law, the Court of Appeal must be active in this field and establish legal and fair standards so it filters and does not allow decisions to be rendered out of the public eye and in violation of the law and become final.
›The publicity of hearings should be understood in such a way that it does not in any way undermine the administration of justice. On the contrary, as the ECtHR’s practice states, it protects litigants against the administration of justice in a secret manner and is one of the ways in which confidence is maintained in the court.
›Judges should be aware that publicity of hearings, according to the ECHR, is one of the elements that shape the right to a fair trial.
›Judges should be aware that pursuant to Article 53 of the Constitution of the Republic of Kosovo, ECtHR judgments are binding in each case. For this reason, it is necessary that they should refer to the practice of this court and apply the standards which it has established when considering a request to close the hearing.
›The transparency of the justice system is not a well-founded fact, which can be publicly proclaimed. There are very specific metrics for assessing transparency. Regarding the judicial system greater non-transparency is present in cases where the public is excluded from attending court hearings which are open by law and for which the public has an interest in being informed.
Recommendations
›Judges to review their decisions for closure of hearings
›Judges to be trained in order to rightly understand the purpose of holding public hearings
›Decisions to close hearings are reasoned in accordance with the legal requirements and standards set by the ECtHR and they should be constantly trained in this area. Following the training, the KJC should monitor the implementation of the ECtHR practice and judges who do not go along this line should be called for disciplinary responsibility.
›Judges should in no case exclude the public, media and civil society from hearings without a well-written and reasoned ruling.
›In principle, all hearings on the review of requests for the imposition of security measures shall be open to the public.
›The Court of Appeal and the Supreme Court to establish fair judicial practices regarding the opening and closing of hearings for the public, media and civil society.
›Prosecutors should oppose unfounded requests to close court hearings. In the event that they consider that the decisions to close the hearings have been unlawful, they shall appeal the judgments to the Court of Appeal with regards to this.
›The KJC should act in accordance with its mandate to discipline judges to comply with their legal obligations when deciding whether to open and close hearings for the public, the media and civil society.
›The KJC should address the controversy surrounding the opening of public hearings to review requests for the imposition of security measures.
›The Assembly of Judges and Supervisory Judges should also contribute to addressing this issue.
›Justice system actors should implement their on-going promises of transparency and accountability of the justice system vis-à-vis the public, media and civil society.
For more, find attached the report published by KLI: ““Unlawful and arbitrary closure of court hearings – 10.08.2019” as well as photos from the conference held on the occasion of the presentation of this report.