The Ombudsperson of Republic of Kosovo has published today Ex Officio Report with Recommendations regarding Termination of investigation of criminal offenses of corruption in conformity with Criminal Procedure Code of the Republic of Kosovo, Article 159.
This Report has three key purposes:
(1) To provide an accurate interpretation of the concept of termination of investigation in conformity with Article 159 of Criminal Procedure Code;
(2) To assess, in particular from the viewpoint of human rights, the problem of automatic termination of investigation of criminal offenses of corruption;
(3) Based on this decision, to provide the state institutions with recommendations for a fairer and more efficient solution of the problem
Report discloses legal definition of the term “Corruption” according to the Law no. 03/L-159 on Anti-Corruption Agency. In conformity with this Law, corruption includes “any abuse of power or any other behavior of official person, responsible person or other person for the purpose of achieving or obtain of an advantage for himself or for illegal profit for his/her self or any other person” (id., Article 2, par. 1, subpar. 3)
The Report contains legal analyses regarding criminal offences of corruption according to Code No. 04/L-082, Criminal Code of Republic of Kosovo, which in Chapter XXXIV stipulates 16 criminal offenses of official corruption and criminal offences against official duty. The Report also analyses the phases of criminal procedure as well as cease of investigation of criminal offences of corruption according to Criminal Procedure Code No. 04/L-123.
Further the Report analyses the contradictory interpretations of Article 159 of Criminal Procedure Code by prosecutors and judges and elaborates interpretation of concepts “end of investigation” and “termination of investigation” according to Article 240 of the Criminal Procedure Code. In his analyses the Ombudsperson deems that the problem of not filing an indictment after termination of investigation according to Article 159 can be solved only with amendment of the Criminal Procedure Code by the Assembly of Republic of Kosovo.
Also the Report provides explanations regarding the connection between investigation of corruption cases and protection of human rights, stressing that criminal offences of corruption have negative consequences on respect of human rights, as it draws attention that inconsistent interpretation of Article 159 of the Criminal Procedure Code represents violation of the right to equality before the law as well as endangers judicial security.
As possible legislative solution of the problem, in the most efficient and the simplest manner, according to the Ombudsperson is amendment of Criminal Procedure Code in a way that Criminal Procedure Code should determine no specific limitation for completion of investigation and filing the indictment against criminal offences set forth in Chapter XXXIV of Criminal Code. By removing the limitation for such cases, prosecutors shall have no obstacle in the prosecution of cases of corruption after two years of investigation, except the statutory limitations set forth in Article 106 of the Criminal Code, so that they could not use the two-year limitation as a justification not to deal with complex cases by substance or with cases which are politically sensitive.
Based on the above-mentioned assessment, the Ombudsperson finds that:
(1) Article 159 of the Code no. 04/L-123, the Criminal Procedure Code of the Republic of Kosovo, accurately interpreted, sets a two-year limitation on the investigation phase of criminal cases, after which investigation is terminated and filing of the indictment is not allowed;
(2) Problem of inefficient prosecution of criminal offenses of corruption causes negative consequences to the respect of human rights;
(3) Contradictory interpretations of Article 159 of Criminal Procedure Code between different judges and prosecutors constitute violation of the right for equality before the law, and endanger legal certainty;
(4) Circulars issued by the Supreme Court do not achieve the purpose of the unique implementation of laws and provide only an illusion of legal certainty;
(5) Amending the Criminal Procedure Code to remove the two year limitation for all criminal offences under Chapter XXXIV, “Official Corruption and Criminal Offenses against Official Duty”, of the Code no. 04/L-082, Criminal Procedure Code of the Republic of Kosovo is the most efficient solution of adequate non-prosecution of the cases of corruption and would not constitute a violation of the right for a trial within a reasonable time.
On the other hand the Ombudsperson recommends the Assembly of the Republic of Kosovo to:
(1) Amend Article 159 of the Code no. 04/L-123, Criminal Procedure Code, to remove the two-year limitation for all criminal offenses of Chapter XXXIV “Official Corruption and Criminal Offenses against Official Duty”, of Criminal Procedure Code of the Republic of Kosovo or. 04/L-082.
Full Ombudsperson’s Report regarding Termination of investigation of criminal offenses of corruption according to Criminal Procedure Code of Republic of Kosovo, Article 159, has been forwarded to the responsible authorities today, August 5, 2016.
Pursuant to Article 132, paragraph 3 of the Constitution of Republic of Kosovo and Article 28 of the Law on Ombudsperson No.05/L-019, the Ombudsperson awaits to be informed on actions planned to be undertaken as a response to the preceding Recommendation in this Report, within 30 days period.
Full form of the Report as it has been forwarded to the responsible authorities, you can find published here on OI official web page. The same is distributed to media as well.
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