IKD: Change of State Prosecutor Law Versus Kosovo Constitution

According to the response of this institute, the MD has deviated from the ARE's specific request, which was approved by the Kosovo Assembly in February 2017, through which the strengthening of the fight against corruption and organised crime was required through strengthening the capabilities of the Special Prosecutor of the Republic of Kosovo (PSRK).

Under ARE, according to the IKD, it was required that through the completion of the Law on State Prosecutors, an increase in the number of prosecutors in P SRK, lowering the legal criteria for prosecutors' admission to this prosecutor.

Despite ARE's specific request, the MD during the amendment to the State Prosecutor's Law has included changes and fulfillments, which are contrary to the Constitution of the Republic of Kosovo and the standard of good governance in the prosecutorial system, trying to empower the state chief body with constitutional competencies belonging to the Kosovo Prosecutorial Council (KPK).

In this direction, through the first MD proposal in the draft law, it is suggested that the Chief State Prosecutor's Office as the third degree be granted competencies in the investigation and prosecution of Kosovo's chief criminal acts, these competencies that are exercised in Kosovo by the Founding Prosecutors and P. SRK as the first scale. The applicable law in Kosovo stipulates that state prosecutors in the Constitutional Prosecutors have painful and territorial competences to present the indictment or to conduct prosecutions near the Constitutional Courts, which are established. The applicable law in Kosovo has not provided for State Prosecutors in the Chief State Prosecutor's Office as the third instance of conducting investigations and raising charges against perpetrators. The competencies of the Chief State Prosecutor, State Prosecutors at the Office of the Chief State Prosecutor are limited only to the exclusive competence of third-degree subjects near the Supreme Court and on all subjects that include extraordinary legal means, which fit Kosovo's culture and judicial practice since its early beginnings. The proposal regarding the provision of additional competencies of the State Prosecutor's Office in the investigation and prosecution of the perpetrators builds standards and practices that seriously undermine the hierarchy of the prosecutorial system in Kosovo, as in the event of the establishment of charges by the chief state prosecutor's office, the same office should file complaints through a lower-level prosecutor, in this case through the Appeals Prosecutor. Through this proposal public confidence in the independence and impartiality of the State Chief Prosecutor's Office is seriously violated in cases of submitting requirements for protection of legitimacy.

Third Proposal MD's attempts are to lift restrictions on prosecutors who accept reward for professional activities at the value of over twenty-five percent of the basic salary, and the obligation to report the KKP for this reward.

This proposal conflicts with the draft Law sent to the Kosovo Assembly for preventing conflict of interest, which the law is also ARE's request. According to him, the goal has been to address restrictions for senior state officials, who hold certain positions at the same time. So if 25% of the State Prosecutor's Law is abolished, there will be no legal control over prosecutors from the KKP, and they can easily receive additional revenues from private or public institutions more than basic salaries.

The MD's second proposal is attributed to the direct empowerment of the chief state prosecutor, who is trying to grant KPK powers. Under this proposal, the chief prosecutor appoints prosecutors to the Special Prosecution, according to the urgent needs and burden of subjects in this prosecutor for the period of 1 year, with an option to continue for another year.

This proposal conflicts directly with Article 110 of the Constitution, which stipulates that the KKP will recruit, propose, advance, transfer, discipline prosecutors in the rule of law. The constitution does not recognise the term “defined”, but only advance and transfer. Installation of a new institute regarding the appointment of prosecutors by the State Chief Prosecutor severely damages the career institute in the prosecutorial system, competition, competition and equal treatment of prosecutors.

The IKD recommends that Kosovo Parliament deputies during the debate and voting on this draft take on the basis of respecting the Constitution of the Republic of Kosovo, obligations emerging from the ARE, IKD findings, assessments and recommendations in this work, as well as comments and recommendations submitted by international factors supporting Kosovo justice institutions.

Furthermore, you find in place the short legal analysis for changes and fulfillments of the State Prosecutor's Law.