Court monitors discovered several cases where Kosovo institutions violated the law on surveillance by illegally wiretapping citizens during criminal investigations.
Murat Mehmeti, a tax inspector in Kosovo, was wiretapped for several months in 2016 by the country’s Special Prosecution. The surveillance ultimately proved Mehmeti’s innocence, but the prosecutor handling the case failed to inform him that his phone was being tapped.
Mehmeti told Prishtina Insight on June 25, 2024, that he was wiretapped in a gambling case investigation, and that case prosecutor Haki Gecaj had not informed him of the surveillance.
“No one informed me [that I was under surveillance]. When the prosecutor closed the investigation, they should have issued a decision, and the wiretaps should have been destroyed in my presence,” Mehmeti explained.
“I should also have been informed of my rights, but none of this happened,” he stressed.
According to Kosovo’s Criminal Procedure Code, the prosecution is required to notify each citizen who has been under surveillance in written form once the case is closed. However, this standard is not always respected, as in Mehmeti’s case.
Prishtina Insight requested information on the number of notifications made to surveilled individuals regarding the status of their wiretapping from all seven State Prosecution Offices, at a national level, but they refused to provide specific data by the time of publication.
Kosovo court proceedings show that wiretaps conducted during investigations are oftentimes ruled illegal in court. Still, the prosecution continues using the procedure without properly applying the law.
The number of surveilled individuals remains a secret and in many cases, they are not informed when the wiretapping ends.
Prosecutor Gecaj is now retired, but he recalls the meeting in 2016 when Mehmeti sought accountability for not being informed about the status of the wiretaps.
“At that time, perhaps the notification was not made. I don’t remember informing him. Perhaps the provisions were not fully respected back then since it was the beginning of the implementation of this law,” Gecaj told Prishtina Insight, recalling that Mehmeti “did not face any consequences.”
“He had some issues with the police because he thought they were doing something intentionally. I explained it to him, but he insisted that there was some [malicious] intention [behind the wiretapping]. From my side, absolutely not—I had no reason to do so. But I suspected he might be cooperating with someone at the Tax Administration ,” Gecaj explained. “It’s been a long time, and I might have forgotten something,” Gecaj added.
Mehmeti initiated a legal battle to seek accountability from the Special Prosecution. The Special Prosecution has declined to comment on the matter.
According to attorney Artan Çerkini, “notifying a person that they have been surveilled is a counterbalancing measure against violations of the right to privacy by state authorities. In cases where surveillance is ordered without factual basis, the state must compensate the surveilled individual materially due to the infringement of their right to privacy.”
Prosecution claims destruction of wiretaps follows legal provisions
Kosovo Justice Palace. Photo: BIRN
Acting Chief State Prosecutor Besim Kelmendi told Prishtina Insight in a written response on July 3, 2024, that “in every case, the data, obtained through legal wiretaps, that are not relevant—that is, unnecessary for specific criminal investigations—are destroyed, as they no longer serve such investigations.”
The prosecution offices indicated that the destruction of wiretaps is carried out in accordance with the law. However, the prosecutions failed to present any tangible evidence of these claims as well.
“Prosecutors act according to the law and notify the party that was surveilled if no indictment is filed,” Ismet Ujkani, the Chief Prosecutor of Mitrovica told Prishtina Insight on July 3, 2024.
Ujkani admitted, however, that there is no “specific practice regarding the destruction of legal wiretaps.”.
On the contrary, the Kosovo Police told Prishtina Insight in a written response on July 4, 2024, that “based on the Law on Electronic Surveillance and the Administrative Instruction, the destruction of all data collected during the implementation of special measures is carried out annually.”
“The last destruction took place in March 2024, and since 2020, data has been destroyed four times,” the police department added.
According to the Law on Interception of Electronic Communications, the data obtained by legal wiretapping during prosecution investigation is stored in the Monitoring Center of the Kosovo Police by “the Chief State Prosecutor or their delegate… for as long as that information is relevant to an ongoing investigation” and be destroyed “within three calendar months once it is no longer needed for the investigation,” or no later “than twelve months after the completion of the investigation.”
The Administrative Instruction on the Destruction of Data Obtained through Lawful Wiretapping specifies that the documents should be destroyed via a shredding machine to make them unreadable. After each destruction, a special report should be conducted explaining the type and quantity of the destroyed data. The destruction can be halted only in the case of a legal process or request.
Based on a 2016 special decision, the Chief State Prosecutor appointed the head of the liaison office for wiretapping who is authorized to oversee the destruction of data.
In cases of data obtained by the Kosovo Intelligence Agency, KIA, the Law on Wiretapping requires the data to be stored by the director of KIA or their delegate and destroyed within one month from when it is no longer needed for the investigation. The Inspector General of the KIA is designated by law to personally oversee the destruction of surveillance material.
The data should be destroyed via shredding machine and a report should be conducted to explain the type and quantity of destroyed data.
But both the law and the administrative act stipulate the storage and destruction of data also within the wiretapping facility of Kosovo Police and within the wiretapping facility of the Office of the Chief State Prosecutor.
Wiretaps conducted illegally
Ilustration: Diar Vucetaj/BIRN
Court monitors found many cases in which the prosecution’s wiretaps of citizens are declared illegal by the courts.
Attorney Çerkini told Prishtina Insight that based on his requests, wiretaps have been excluded as evidence by the court several times.
“Based on motions for the inadmissibility of evidence, the court decided to exclude wiretaps as evidence for the following reasons: the court did not justify why wiretapping was the only means to obtain evidence; the wiretaps were conducted without a decision to initiate an investigation; and the wiretaps were carried out after the expiration of the period for which they were issued,” Çerkini told Prishtina Insight.
Shkodran Nikçi, spokesperson for the Basic Prosecution of Peja confirmed that “in a case in 2021, evidence obtained through special investigative measures was declared inadmissible by the court.”
In one case against former Kosovo Prosecutorial Council secretary Lavdim Krasniqi and three other public officials, accused of abuse of duty, the Basic Court of Pristina ruled a prosecution wiretap inadmissible on the grounds that it was conducted illegally, even though the evidence was crucial for the prosecution.
According to the court’s decision, the evidence – which was a transcript of a conversation and a CD containing a video of a meeting – were issued in violation of the procedure prescribed by the Criminal Procedure Code of the Republic of Kosovo. Specifically, the order was given without knowing the name of the person being wiretapped. In the retrial, the Basic Court of Prishtina, on February 16, 2024, found Krasniqi not guilty of abuse of official position or authority, exercising influence and failing to report assets.Two other defendants were also acquitted and one defendant was found guilty of document forgery.
An appeal was filed in this case.
On November 13, 2023, in another case, the Basic Court of Prishtina also acquitted four defendants charged with usury, after ruling the wiretaps inadmissible as evidence because they were obtained before the Decision to initiate the investigation was issued.
Entitlement to compensation rarely enforced
Palace of Justice. Photo: BIRN.
Parties who have been unlawfully surveilled are entitled to compensation; however, the courts in Kosovo do not have a database identifying the number of lawsuits of this nature, making it impossible to determine whether violations are made in this regard.
In one case identified for this article, the Basic Court of Prizren rejected a request for compensation. The verdict was appealed on June 22, 2023.
A citizen, only identified as R.S., filed a lawsuit with the Basic Court of Prizren, claiming that the secret technical measures of investigation and surveillance applied to him were carried out without legal basis. As a result, he alleges that he suffered non-material damage, specifically emotional distress due to the violation of his freedom of communication, dignity, honor, and personal integrity.
The Basic Court of Prizren ruled that the invasion of the individual’s privacy was proportionate and reasonable in relation to the value of the threatened society and the public good that was at risk. There was a well-founded suspicion that the plaintiff had committed crimes against the constitutional order including “murder of high representatives of the Republic of Kosovo,” and “preparation of terrorist acts or criminal acts against the constitutional order and security of the Republic of Kosovo.”
The court also emphasized that the material obtained through the secret technical measures of investigation and surveillance was confidential and was only available to authorized officials and destroyed in accordance with Kosovo’s legal framework.