Since 2008, 8,000 Kosovars have been wrongly sentenced to jail time, according to a new investigation by BIRN. The violation of the Constitution by judges is the biggest scandal in to date in the Kosovo judicial system.
Article 29 of Kosovo’s Constitution stipulates that prison sentences can be imposed only for criminal acts, not for minor offences. An investigation, which first aired on BIRN’s TV show Justice in Kosovo, found that that this article of the constitution has not been implemented in Kosovo’s eight years of statehood, resulting in jail terms for defendants of at least 8,000 cases before the country’s basic courts.
The injustice towards 8,000 citizens was accepted by even the highest leaders of the judicial system but as of yet, no compensation scheme for the victims has been announced.
After after the broadcast of the TV programme on September 30, Kosovo’s Appeal Court annulled hundreds of prison sentences for minor offences the next Monday.
The investigation found that instead of following the 2008 Constitution, which forbids prison sentences for minor offences, judges had been implementing a Yugoslav-era criminal code from 1978, which allowed prison for minor offences.
Gazmend Zeqiri is one of the 8,000 citizens did jail time even though the Kosovo Constitution doesn’t stipulate that traffic violations are punishable by prison.
“I was sentenced to prison twice, and I served my sentence in the Lipjan prison. And if now they prove that I have been sentenced wrongfully, then I will demand compensation,” said Zeqiri, who was sentenced to prison by a first degree court for two separate minor offences.
The Justice in Kosovo investigation revealed that since Kosovo’s independence, over eight thousand citizens have served prison sentences between three to 60 days for minor offences, which was foreseen in the Law for Minor Offences approved in 1978.
Somehow, for the more than eight years since the Constitution has been in force, none of the parties responsible, have noticed that the sentencing of over 8,000 citizens is unconstitutional.
Those responsible were reminded that they imposed prison sentences in violation of constitutional rights, only when the Justice in Kosovo team asked for clarification.
“We’re all responsible, we can’t avoid that, or remove the responsibility from ourselves,” said Supreme Court chief Fejzullah Hasani. “Starting from the judges and on to other authorities, we’re all part of the responsibility for these violations.”
He said that none of the judges noticed that the law on minor offences does not comply with constitutional norms.
“Unfortunately none of the judges used the incidental control, which means that a judge is obligated that in the moment when he has a case and he has dilemmas about the harmony of the law and the constitution, he should rest the case and address it officially to the Constitutional Court, so that they can avoid or remove the dilemmas that that judge may have for that concrete case,” said Hasani. “The misfortune is that no one used this.”
One of the institutions which according to the law should have sent the issue to court is the Ombudsperson. This institution only started thinking about these 8,000 people once BIRN journalists started investigating.
Ombudsperson Hilmi Jashari admits that a prison sentence for minor offences presents a violation of constitutional rights. He blames the Supreme Court which, according to him, has the mandate to offer opinions through which they can avoid such violations.
“The Supreme Court is obligated to issue official opinions for basic courts, when it comes to implementing the justice system in the issue that reflects a large number of cases, or affect a systematic issue in Kosovo judiciary,” said Hilmi Jashari, Ombudsperson.
But, the head of the Supreme Court, Fejzullah Hasani, leaves the responsibility of protecting human rights to the Ombudsperson.
“One of the primary duties of the Ombudsperson is to protect human rights, but now we can’t put the blame to anyone, even the ombudsperson, because every day as judges we have imposed sentences and neglected this issue,” said Hasani.
Hasani also maintains that all stakeholders in the judicial system are responsible, from the lawyers to the various courts. He said that if they would have detected this issue a long time ago, the damages would have been smaller. Now, after eight years the cost of all this will be high, he added.
“This surely will have its negative impacts for the state and for the institutions, for the people who have been affected certainly…financially there’s a cost for each violation of human rights,” said Hasani.
Mentor Borovci from Ministry of Justice said that they could not change the Law for Minor Offences, but they are planning to pass a new law will adapt to the constitution. With the new law, which is expected to enter into force starting January 1, 2017, Borovci explained, the prison sentence will be removed.
According to the law, every judge or person who contravenes the legal rules to send someone to prison must be criminally prosecuted for illegal depriving them from their freedom.
After Justice in Kosovo’s report , the Court of Appeals annulled all prison sentences for minor offences that have been imposed and were waiting to be executed in Kosovo courts.
The announcement of annulling all decisions was done by Judge Dalip Bega, who is responsible for the department of minor offences. Begaj, in a written note sent to all Basic Courts, ordered judges not to impose prison sentences for minor offences and notified them that these sentences violate the constitution.
13 October 2016 - 16:28
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