The Ombudsperson Institution published Report with Recommendations No. 239/2016 regarding prescription of judicial proceedings and execution of decisions of Basic Court in minor offence cases.
This Report aims to prove the seriousness of the prescription problem in minor offences cases;
to draw attention to harmful consequences caused by prescription of minor offence cases to the state budget of the Republic of Kosovo, and the respect of human rights; to provide an assessment on the solutions to this problem proposed in the Draft law no. 05/L-087 on Minor Offences; to provide recommendations to the Assembly of the Republic of Kosovo for a fair and more efficient solution of the problem.
Ombudsperson’s legal competency is based on the Law No. 05/L-019 on Ombudsperson, Article 16, paragraph 8 and Article 18, paragraph 1, subparagraphs 5, 6, 7, 8, 9. Drafting of this Report, delivering it to the competent institutions as well as its publishing is in the function of accomplishment of legal responsibilities that the Ombudsperson has.
The consequences caused from prescription of minor offence judicial proceedings comprise the main theme of this Report, where the facts gathered have been analyzed from aspect of legal provision for regulation of judicial proceeding and execution of decisions in minor offence cases as well as from statistical aspect of problem of prescription of minor offence cases, in judicial proceeding phase and in the phase of execution of sanctions, with the aim to disclose the size and extension of prescription problem of these cases.
Merging the number of cases of prescription of procedure with the number of cases of prescription of execution, it results that during 2015, there were in total 26,266 prescribed cases additionally 32860 minor offence cases admitted during 2015, are in total 59,126 cases prescribed. If this number is kept constant from year into year, we could expect that out of 327,162 cases received by Basic Courts in 2015, about 20% of them will be prescribed, be it at the judicial procedure stage or at the execution stage.
The tremendous dimensions of the problem of prescription of minor offence cases, be at the stage of procedure or at the stage of execution, cause a number of serious consequences for the Republic of Kosovo
Harmful consequences of the prescription only during 2015, cost at minimum €808,095 to the Budget of Kosovo with precondition that this harm to the state budget is likely to increase even more in years to come.
Other than the extraordinary budget impact, the problem of prescription of minor offence cases have also harmful consequences in the respect of human rights, acctually represent violation of the right to life and security, according to Articles 25 and 29 of the Constitution of the Republic of Kosovo, Article 2 and 5 of the European Convetion of Human Rights and Article 3 of the Universal Declaration on human rights.
Problem of prescription also represents violation of property right, according to Article 46, of the Constitution of republic of Kosovo and the Article 1, par. 1 of the First protocol of ECHR.
In order to understand the connection between these rights and the problem of prescription, one should pay attention to article 53 of the Constitution which stipulates that; “Human rights and fundamental freedoms guaranteed by this Constitution shall be interpreted consistent with the court decisions of the European Court of Human Rights” (“ECtHR”).
Court decisions of ECtHR clearly define that all states, not only they have negative obligations not to violate the rights set out in the Convention, but they also have positive obligations which is to protect these rights from the risk of violations from other persons.
Since the problem of prescription of minor offence cases constitutes not only a huge harm to the budget of the Republic of Kosovo, but also a violation of human rights, the Ombudsperson has found it indispensable that competent authorities should find an efficient solution to this problem as soon as possible.
The Ombudsperson in the given Report ascertains that a source of solution may be the Draft Law no. 05/L-087 on Minor offences which aim at completely substituting the Law of 1979 and bringing necessary reforms to the system of minor offences.
But, the proposal in the given Draft Law, on transfer of competences for trial of some minor offence cases from Basic Courts to administrative bodies, the Ombudsperson sees as violation of the right to a fair and impartial trial in conformity with article 31 of the Constitution of the Republic of Kosovo and Article 6 of European Convention on Human Rights despite the fact that can facilitate the problem of statutory limitation.
Such transfer of competencies from the judiciary to state administration, the Ombudsperson considers that can be done only in case the defendant has the possibility to dispute the administrative body decision before a tribunal which provides all guarantees of Article 6 of ECHR and that has full jurisdiction over all factual and legal issues, the possibility which is not been provided by Draft law 05/L-087 on Minor Offence.
Furthermore, the Ombudsperson considers that deduction for 50% of the penalties rendered in case of payment within the deadline set, as foreseen with the Draft Law No. 05/L-087 on Minor Offence, Article 30, paragraph 3 is not a right solution to the problem of prescription of execution. Such a solution risks causing more harm to state budget, than the problem itself, which pretends to be a solution.
Since two proposed solutions given in Draft Law No. 05/L-087 on Minor Offence are occurred to be problematic, the Ombudsperson considers that prolongation of procedural and execution statutory limitations would be a more efficient solution of the problem of prescription and would not constitute violation of human rights in conformity with the doctrine “margin of appreciation” of European Court on Human Rights (ECHR).
Based on these ascertains and in accordance with the Article 135, par. 3, of the Constitution of Republic of Kosovo and Article 16, par. 4, of the Law No. 05/L-019 on Ombudsperson, the Ombudsperson recommends the following to the Assembly of Republic of Kosovo:
(1) (a) Amend Draft Law no. 05/L-087 on Minor Offences in order not to transfer competences from Basic Courts to Administrative bodies for judging minor offence cases, or (b) amend Draft law no. 05/L-087 on Minor Offence in order to ensure the possibility to dispute decisions of bodies on minor offence before a tribunal which meets criteria of Article 6, par. 1 of European Convention on Human Rights, and with complete jurisdiction to review all factual and legal issues;
(2) Remove entirely Article 30, par. 3 of Draft Law no. 05/L-087 on Minor Offence: “In the case of payment of fine, within the deadline set by minor offence ordinance, the fined person is released from the payment of 50% from the amount of the fine rendered”;
(3) Prolong statutory limitations of judicial proceedings and execution of decisions in minor offence cases, up to the degree that the Assembly of the Republic of Kosovo deems it necessary to facilitate considerably, the problem of prescription, without exceeding rationale boundaries in conformity with the case laws of the Member States of the Council of Europe.
Full Ombudsperson’s Report No. 239/2016 regarding prescription of judicial proceedings and execution of decisions of Basic Court in minor offence cases, on 25 April 2016, has been addressed to the Speaker of the Assembly of Republic of Kosovo, to the President of the Commission on Human Rights, Gender Equality, Missing Persons and Petitions, committee on Legislation, Mandates, Immunities, Rules of the Procedure of the Assembly and Oversight of Anti-Corruption Agency and Presiding of the Working Group for the Draft Law No. 05/L-87 on Minor Offence.
In conformity with Article 132, paragraph 3 of Constitution of the Republic of Kosovo (“Every organ, institution or other authority exercising legitimate power of the Republic of Kosovo is bound to respond to the requests of the Ombudsperson and shall submit all requested documentation and information in conformity with the law”) and Article 28 of Law no. 05/L-019 on Ombudsperson (“Authorities to which the Ombudsperson has addressed recommendation, request or proposal for undertaking concrete actions, … must respond within thirty (30) days. The answer should contain written reasoning regarding actions undertaken about the issue in question”), will you kindly inform us on actions to be undertaken about this issue.
Full Report with Recommendations No. 239/2016, in a form that has been delivered to the responsible authorities, can be found here in the web page. The same has been distributed to media as well.
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