By ignoring aggravating circumstances, courts have drastically reduced the sentences issued against those who have attacked and threatened journalists.
Kosovo courts have ignored public requests that attacks on and physical threats to journalists be considered as aggravating circumstances and the perpetrators punished with maximum penalties.
BIRN has analysed court judgments in cases of threats and attacks against journalists in recent years and has discovered that the courts have ignored aggravating circumstances, drastically reducing the sentences against those who have attacked and threatened journalists.
In five analysed cases, the court only considered four circumstances as aggravating while 12 were taken as mitigating.
From 2016 until today, five criminal cases in which the victims were journalists have been judged in the first instance in the courts of Kosovo.
BIRN requested the files of all these cases. Only the Court of Gjakova failed to provide access to a case on the grounds that it cannot identify them in the system.
To reach the conclusions mentioned above, BIRN analysed the judgments and the way the judges weighed the sentences, taking into account aggravating and mitigating circumstances.
Judges use a quasi-mathematical formula when calculating a sentence. This is defined in the Criminal Code. If there are more aggravating circumstances, the perpetrator is punished more severely; if there are more mitigating circumstances, he or she is punished more lightly.
In the cases analysed, the data show that the courts imposed extremely low sentences – mostly fines.
The cases are presented individually, to reflect evidence of mitigating circumstances in a relatively higher number than the aggravating circumstances and the lack of justification of these circumstances.
Attack on Indeksonline portal journalist in 2020
This file was handled by the Court of Ferizaj, which approved the prosecution’s proposal for a punitive order, pronouncing a judicial warning to the accused.
The accused was found guilty of the attack on the journalist in November 2020, in Kaçanik.
The court file shows that the journalist encountered police and sanitary inspectors while inspecting premises regarding their compliance with anti-Covid measures. He took out his phone and took some photos.
But when the journalist took some photos, the defendant said: “Who are you to dare take pictures of us?” The journalist said he was a journalist and offered to show him his ID Press Pass, but the defendant then pushed the journalist with both hands and flung insults at him.
The defendant was found guilty, but the court only issued a judicial warning, which means he was released but informed that he had committed a crime and that if he committed it again, the court would issue a stricter sanction.
The evidence that the court received to prove the factual situation of the file was CDs as well as the testimonies of witnesses and the defendant.
The verdict contains no detailed legal reasoning as to why it issued a judicial warning. The court was content to cite the article in the Penal Code that highlights the goals of the punishment.
“When announcing the judicial warning, the court assessed that with this warning, the general purpose of the sentence provided for in Article 38 of the Criminal Code will be achieved, namely, it points to its dangerousness and to its author, which will serve to prevent the perpetrator from committing criminal offences in the future and rehabilitate him,” the judgment says.
The other identified drawback of the judgement is that it contained no justification as to how the court came to the conclusion that the judicial warning would fulfil the purposes of punishment, each one separately or as a whole.
Intimidation of a journalist in Klina in 2019
In 2019, this journalist received threatening messages. The court sentenced the perpetrator to a fine of 300 euros.
“I am preparing a lawsuit in court that you have been writing ‘fake’ and untrue news and as a result are causing panic among citizens, so see you in court, but also in other forms,” are the threatening words the accused sent the journalist.
The accused pleaded guilty to threatening the journalist.
The accused was given the opportunity to pay the fine within two years. Meanwhile, he was released from procedural expenses due to the difficult economic situation.
His criminal file states that in 2019, in Klina, he threatened the journalist over the phone while hiding the phone number.
When analysing the aggravating and mitigating circumstances that the court weighed in order to arrive at the penalty of 300 euros, it took four mitigating and two aggravating circumstances into account.
The mitigating circumstances were: correct behaviour in the initial examination; admission of guilt; expression of regret for the offence and the fact that he was breaking the law for the first time.
The court found the intention to commit the offence and the criminal act punishable by a fine or imprisonment of up to one year to be an aggravating circumstance.
In this criminal case as well, the court was satisfied only with the counting of mitigating and aggravating circumstances, without including any reasoning separately for each of them, or even the fact that the court thought that the fine of 300 euros fulfilled the purpose of the punishment.
In this judgment, the same standard of the court was applied, which only gives details of the purpose of the punishment according to the Criminal Code.
Journalists threatened filming Construction Inspectorate
In this criminal case, three persons, E.F., G.P., D.K., were accused of obstructing the work of journalists filming the action of the municipal construction inspectorate for the demolition of a part of a shopping centre.
The event is said to have happened on July 19, 2019, in Prizren.
“Keep moving, or I’ll crash you to the ground!” the son of the owner of the centre told the journalist GJ.F., who was filming the action of the Inspectorate.
He is also accused of assault, since he pushed both journalists to stop them from filming the process.
According to the file, the manager of the centre is also accused of assault. He allegedly blocked the journalists from shooting with his hand and then hit the victim with his right hand, although there were no physical injuries.
A third person was included in the case for threats.
He was accused of saying to a journalist: “Walk, walk or I swear to God I’ll destroy you!”
The court fined the accused for a case that the court considered of penal nature.
One of the accused, E.F., received a single sentence for the two offences, a fine of 900 euros. The accused G.P. was fined 400 euros and D.K. 500 euros.
Measuring court sentences
In the cases investigated above, the court did not find any aggravating circumstances when assessing the punishment.
The mitigating circumstances it found were: admission of guilt; correct behaviour after committing the crime; deep remorse, and public apology to the injured.
“Their cooperation with the court was voluntary in the criminal investigation and prosecution, and they expressed and are ready to compensate the injured for material damage, until now not specified by court,” the court found.
Based on these circumstances, the court assessed that a fine would achieve the purpose of the punishment.
This judgment of the Court of Prizren also contained no detailed reasoning about the measurement of punishment.
Another case of threats against journalists was fined 1,220 euros.
Two months’ time spent in custody was also calculated in this penalty. Access was not provided in this judgment, as the case was in the court archive, given the long time that had passed since the decision was made.
Attack on journalist Valon Syla
Journalist Valon Syla was attacked on a street in Pristina over his comments about the Kosovar diaspora.
B.J., who had attacked him, according to the prosecutor’s file, was dissatisfied with Syla’s posts and struck him with his hands on the head and neck, causing minor injuries.
He was found guilty and sentenced to a fine of 4,500 euros. He was also held in custody by court decision.
He was charged with the crime of causing minor bodily injury. It is understood from the file that the attacker admitted guilt for the criminal offence.
Circumstances considered by the court
The court accepted as mitigating circumstances the admission of guilt, deep remorse, the first-time nature of the offence against the law and correct behaviour in court.
As an aggravating circumstance, it found the dangerousness of the offence and the fact that the offence was committed in a public place.
Also, according to the court, a circumstance that aggravates the punishment is the motive of the offence by the defendant, linking this to freedom of expression of journalists, adding that the victim’s statement was not addressed directly to the defendant, but in an abstract way, thus attacking a certain group of people.
Committing the offence in the presence of bystanders was evaluated by the court as a reflection of negative behaviour that created fear and concern among all witnesses and not only them, adding that conducting the criminal offence was recorded and distributed on social networks, creating a bad image for the rule of law in the country. All these circumstances were weighed by the court when arriving at the decision to fine him 4,500 euros.
Analysis of prosecutors’ files in cases of attacks and threats against journalists
Files opened by the State Prosecutor’s Office that are being processed in the courts for attacks and threats against journalists are described as suffering numerous delays that lead to violations of legal deadlines for resolving such cases.
In addition to delays and violations of deadlines, court decisions regarding the files where journalists are victims of criminal offences lack justification about the punishments and the circumstances that the courts have taken to measure the punishments.
According to the statistical report of the Chief State Prosecutor’s Office, it can be seen that the number of indictments filed for the period of time that BIRN requested is higher than the judgments that the court recorded.
The report of the Chief State Prosecutor’s Office shows the number of indictments filed for these criminal files is 26.
In 2016, the State Prosecutor’s Office proceeded before the courts with three indictments; in 2017 it was also three indictments. In 2018, only one file was processed in court, while in 2019, seven indictments were submitted for trial in courts in Kosovo. Four indictments were filed in 2020, while eight were processed in 2021. No indictment has been registered this year.
Although there is a higher number of open files, the courts have judged only five of them.
This publication and the investigation were financially supported by the European Union. Its content is the responsibility of the Balkan Network for Investigative Journalism, BIRN, and does not necessarily reflect the views of the European Union.