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Strategic Litigation in the application of pre-trial detention in Kosovo – an opportunity for fostering criminal justice reforms

admin - February 19, 2020

This post is written by the Kosova Rehabilitation Centre for Torture Victims (KRCT). Its contents are the sole responsibility of the author and do not necessarily reflect the views of Fair Trials.

The use of deprivation of liberty before trial should in principle only be applied as a last resort, and only when it is absolutely necessary. This change in practice is necessary due to the large number of people in Kosovo who are deprived of their liberty-without an indictment for their alleged violations.

Holding a suspect in custody may impact many of their other rights at the same time. These rights, which are also guaranteed by higher domestic and international acts, are at risk of being violated at this stage of the investigation if the use of detention is overused.

Unnecessary pre-trial detention not only results in unnecessary costs but also deprives defendants of their liberty and endangers security and presumption of innocence. From a political perspective, decisions to arrest or release a defendant must be balanced between the benefit of the release and the risk of escape or threat to public safety.

Alternative measures are opportunities which, if properly addressed, can be used to obtain release against the suspect's arrest in criminal proceedings. Consequently, the effective administration of the detention system would have a major positive impact on the efficiency of the justice system as a whole.

Other elements to consider that support the argument of using alternatives to detention are the high cost of detention and the high budgetary cost that the Kosovo Judicial Council pays as compensation for unlawful detention or conviction to citizens of the Republic of Kosovo.

Since 2015 through strategic protection, KRCT has called on the judicial system to adhere to the ECtHR jurisprudence regarding the use of detention to advance the protection of human rights in criminal proceedings.

The practice of judicial system in Kosovo has produced only superficial reasoning for lengthy detentions so far. Most of the grounds for detention or extension lack the proper justification as to why other alternative measures are insufficient to secure the defendant's presence in the proceedings.

Data from the Kosovo Correctional Service indicate that about 70% of inmates, including detainees, do not have a final judgement. This situation has been largely postponed by the large number of cases returned for retrial by the Kosovo Court of Appeal and the delays in adjudication after the indictment has been filed.

As a result of KRCT’s efforts in the capacity of amicus curiae towards this case, as well as submissions by other stakeholders, on the 31st October 2019 the Constitutional Court of Kosovo found admissible the Application for Constitutional Review of the Judgment of the Supreme Court of Kosovo (Case no. KI 10/18). The judgment addresses in detail multiple aspects of the right to liberty and security under Article 29 of the Constitution of Kosovo and Article 5 of the ECHR.

The content of the judgment constitutes a very valuable guide to the judicial system in Kosovo in cases of detention on remand, extensions, consideration of alternative measures, etc.

This judgment is in particular an ideal case for the judicial system to improve the practice of using detention in all its phases and can significantly contribute to the reform of criminal justice in Kosovo by guaranteeing the right to liberty and security and the right to a fair trial.

The Kosova Rehabilitation Centre for Torture Victims (KRCT) is an independent, non-governmental and non-profit organization founded in 1999 with the mission to provide treatment and rehabilitation for Kosovar torture victims, continuous capacity building on trauma and torture related issues, of its staff and public sector; as well as to promote the respect of human rights for all the Kosovo ethnicities and to influence the prevention and eradication of torture.  

The organization has been working on torture-related issues since its foundation in the aftermath of the 1999 conflict, when it initially focused on the rehabilitation of survivors of torture and become a reference center on torture documentation, prevention and rehabilitation. In 2006, the organization underwent substantial structural changes. There were Human Rights and Advocacy Unit established with aim to extend KRCT mandate in monitoring the places of detention and advocate through recommendations for improvement of human rights situation of those deprived of their liberty to the responsible authorities. (www.krct.org)

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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