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20.9.2017

The Ombudsperson published the Report concerning effective defense in criminal proceedings and guarantee of equality of parties - assignment of the defense council at the public expenses

The Ombudsperson has delivered to responsible authorities and has published a Report with Recommendations concerning effective defense in criminal proceedings and guarantee of equality of parties - assignment of the defense council at the public expenses.

The Report is based on data gained from the investigations, according to which in majority of criminal cases, the courts do not assign defense councils at public expenses for cases when interest of justice requires so, when the defendant cannot afford expenses of defense and the criminal procedure against the defendant ends without the defense counsel.

The Report holds that courts in Kosovo in majority of criminal cases, where, according to the Criminal Procedure Code (CPC) the defense is not mandatory, defense counsel at public expenses has not been appointed. According to the Ombudsperson this practice represents breach of the right for effective defense for the defendant in the criminal proceedings, and being such, violation of equality of arms principle in the criminal proceedings.

The purpose of this Report is to draw attention of responsible authorities on violation of one of the fundamental human rights in criminal proceedings, the right on effective defense in criminal issues, or guaranteeing of the defendant’s right, as a focus of criminal proceedings, to have defense counsel and when it is needed, this kind of defense to be provided at public expenses.

Based on the Report, equality of the defendant with the State Prosecutor, from a professional point of view is the premise of effective procedural equality, in the sense of security that no harm will the defendant undergo because of lack of knowledge of his rights in criminal proceedings. Attorney's engagement is a guarantee that the defendant’s dignity will not be harmed, will be presumed innocent and will effectively use all legal remedies to be defended from the charges, so that at the end of the criminal proceedings against him, to have a lawful and fair decision, as guaranteed by law, constitution and international instruments.

The Ombudsperson reiterates that the function of the defendant’s defense means “assistance" rather than "appointment". Therefore, in all cases when the authorities become aware that the attorney bypasses defense obligations and fails to effectively defend the defendant, they should either replace him or force him to fulfill the task entrusted to him. In cases when the request for appointment of the defense council at public expenses has been overruled, this decision ought to be reviewed in certain phases of the proceedings, depending from complexity of the case.

In cases when “criminal proceedings is being conducted for a criminal offence punishable by imprisonment of eight (8) years or more " the Ombudsperson holds that very high limit has been foreseen related to conviction with imprisonment of "eight (8) years or more", because referring to the Criminal Code of Kosovo, this criterion applies to a limited number of very serious offenses for which compulsory defense would be justified.
The Ombudsperson states that one of the main criteria on which appointment of the defense at public expenses to the defendant in Kosovo should be based on, in terms of guaranteeing the interests of justice, should be the possibility of imposing of conviction with effective imprisonment.

Having in consideration that the main challenge for the judicial practice in Kosovo is appointment of the defense counsel at public expenses for the cases when, according to Criminal Procedure Code (CPC), defense is not mandatory, determining violation of liabilities arising from international acts, such as International Covenant on Political and Civil Rights (ICPCR), European Convention on Human Rights (ECHR) as well as decisions of European Court on Human Rights (ECtHR) related to the right that the defendant is entitled to free of charge defense, the Ombudsperson recommends that:

Ministry of Justice/ Legal Department, that in the scope of amendments/ alternations of the CPC to determine more distinctly the right on appointment of defense counsel at public expenses, that this right is to be mandatory and in accordance with the practice set by the ECtHR.

Supreme Court of Kosovo, based on legal and constitutional responsibilities entrusted, to issue a legal opinion in order to instruct the lower instance courts to enforce ECtHR decisions related to the appointment of defense counsel at public expense as well as based on this court’s standards, the principle of equality of parties in criminal proceedings to be respected.

Kosovo Judicial Council, to instruct all courts so that judges in criminal matters have due concern to strictly respect defendant’s right to have defense counsel, in particular for the right on assignment of a defense counsel at public expense. To this end, the ECtHR's practice will serve as the key reference. Additionally to decisively propose a higher budget related to the coverage of defense expenses in cases when the defense counsel ought to be appointed at public expenses.

Kosovo Prosecutorial Council and Chief-State Prosecutor, based on legal and constitutional responsibilities entrusted to them undertake necessary measures to instruct and oversee the respect of defendant’s right to be timely informed on the right of having a defense counsel, in particular the right of appointment of defense counsel at public expense. Further, that the right on defense and equality of arms principle in criminal proceedings (with emphasis on the investigation and filing of the indictment phase) is strictly respected and is in accordance with the highest professional standards.

This Report with Recommendations, in its full form, has been delivered to the responsible authorities as well as has been disseminated to media and published on OI official web page in the following link: : http://www.ombudspersonkosovo.org/repository/docs/(1)Ex_officio_594-17_Raport_me__rekomandime-Mbrojtja_efektive_ne_procedure_penale...._177166.pdf
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