Kosovo Legal Experts Adviser Panel reacts to arresting people who do not respect measures in force

Legal Experts Adviser Panel -Kosovo as part of the Kosovo Legal-European Experts' Consultative Panel on Friday, has published the legal analysis of the protection of citizens on the part of the Kosovo Police, as a result of disrespect of the Health Ministry's <x0 decision.

According to this panel, arresting citizens for disrespecting specific measures in the Health Ministry's decision ( The MK is illegal and seriously violates the rights of citizens of the Republic of Kosovo.

The analysis states that the principle of legality is a fundamental legal-penal principle embedded in our Republic of Kosovo system, under which no one can be convicted of criminal acts that have not been appointed to law as criminal acts and that right cannot be deregulated under any circumstances, whether in an emergency condition or even in the time of the declaration of the state of emergency.

Total legal analysis:

On March 15, 2020, the Ministry of Health has issued a decision on preventing, fighting, and eliminating the infectious disease COVID 19 for respective municipalities. With that decision, the MS has seen a series of measures aimed at protecting the lives and health of citizens. At the same time, it is estimated that the failure to comply with specific measures in this decision is considered by law, as administrative offence and fined 1,000 euros to 2,000 euros for physical persons and 3,000 euros to 8,000 euros for legal persons, while the person responsible is sentenced to 500 euros to 1,500 euros. In accordance with the law, fines are pronounced by the competent Inspectorate.

Kosovo Police reports testify to the arrest of persons as a result of failing to comply with the Government's decision, in some cases by treating citizens' violations as perpetrators, and in others as criminal acts of inaction under health provisions during the epidemic. Such an approach clearly demonstrates the existing judicial uncertainty in the country.

Without commenting on the legality of the above-mentioned MSA decision, considering that every decision is legitimate until a competent court finds the legality of the same, as well as without addressing or discussing the undertaken measures, legitimacy and need of which at this pandemic stage is indisputable, we consider that arresting citizens for disrespecting measures set out in the Health Ministry's (or health ministry) decision. The MK is illegal and seriously violates the rights of citizens of the Republic of Kosovo.

The Health Ministry's decision on prevention, combating and eliminating the infectious disease COVID 19 describes as countering the actions of those who face this decision, while on the other hand, Kosovo police, along with the State Prosecutor, are dealing with these acts as criminal acts, referring to Article 250 of the Penal Code, specifying that “anyone who during the time of the outbreak or some infectious disease does not act according to other orders or decisions issued on the provision of the competent body, which has been setting out measures aimed at preventing or preventing them from being sentenced to two years of imprisonment, (2)1).

According to this description of consuming the work in question, the application of the blanchete rate, which guides to the decision of the competent organ that sets out measures to combat the disease. The competent body, in this case the Ministry of Health, has determined preventative and combative measures of the disease and its device of the decision, which in its character is commanding, has also determined that the actions of those who conflict with this decision are described as countertaking by determining the competent body for monitoring this decision that are the Sanitary Inspectors rather than the Kosovo Police.

In this direction, it should be suggested that the principle of legality is the basic judicial-penal principle embedded in our system of the Republic of Kosovo, under which no one dares be punished for criminal acts that have not been imposed in law as a criminal offence.

The principle of legitimacy is a powerful dam of protecting basic human rights and freedoms against the arbitrability of state organs. Legality as a basic principle protects and empowers human rights while forcing state bodies to develop procedures with professionalism and discretion in harmony with the law. This principle is violated not only in cases of criminal responsibility and punished by those who have not committed criminal acts. Especially such vulnerability, justice organs can do so through the analogy that under our system is basically prohibited, but in some cases, analogy is allowed when a prior decision by the competent body is required to shape the constitutional elements of criminal work.

The Penal Procedure Code in Article 2 envisions the pontiff of the principle of legitimacy that predicts that if there is uncertainty about the definition of criminal acts, this uncertainty should be interpreted in favour of the person. Usually the uncertainty of incriminating criminal acts is met when the Penal Code directs the implementation of another law to shape elements of criminal acts. “The definition of a criminal act should be correctly defined and interpretation not allowed by analogy. In case of uncertainty, the definition of the criminal act is interpreted in favour of the person against whom the criminal procedure is conducted”, says Article 2 of the KPP.

And at Article 3 of the Criminal Procedure Code is set forth the principle “dubio pro reo” in which it points out that “doubts about the existence of important facts on the issue or the implementation of any criminal law provision is interpreted in favour of the defendants and its rights under this code and according to the Constitution of the Republic of Kosovo<3>.

In view of all of this, competent institutions must be careful to implement the provisions in force and to comply with the same, thus preventing the practice of arrests and bans of citizens of the Republic of Kosovo for acts that constitute wrongdoing and no criminal acts.

In the course of this, we have also analyzed the practice of some European countries, taking into account the previous measures and restrictions from these countries, to review and forward the sanctions that each of these countries have provided in case of violating measures to prevent the COVID pandemic 19 by its citizens.

ITALY
The violation of measures imposed by Italy's state sanctioned Italian citizens with fines of between 400 and 3,000 euros, as well as imprisonment for up to three months.

AU STRIA
The state of Austria has seen fine sentences of up to 3,000 euros for persons who do not respect state decisions related to quarantine during this period of time.

FRANCE
In this country, violating quarantine rules leads French citizens to fine sentences of 135 to 3,700 euros, as well as prison sentences of up to six months in case of repetition, or of committing several violations.

THE UNITED KING
Police officers in this country have the right to pronounce fines in the country, starting with those worth 60 pounds.

BELGIA
Limitations on the movement of citizens even in this country are sanctioned only by fines.

HU FROMRIA
This is one of the only countries that has seen prison sentences, not penaltys. In the event of violations of quarantine measures, the sentence of up to 8 years in prison is envisioned.

RUSSIA
The violation of state measures on quarantine is sanctioned by fines from 12.5euro to 499 euros.

Compared to the analysis of the practice of various European countries, which notes that most of these states have adjusted the issue in the form that violation of measures related to preventing COVID-19 is sanctioned by fines, and even certain world organizations that care for respect for human rights have repeatedly called for avoidance of imprisonment under these circumstances. Above all, this has been called for because of the dangers of the wider spread of pandemic, especially considering conditions, conditions, and population of corrective institutions in all countries.

Recommendations for the Police:

Stop the practice of arresting and stopping people for acts involving wrongdoing.
Kosovo police in co-operation with institutions implementing the law pronounce administrative fines in accordance with applicable laws. This, for example, has already been done in several large cities in the United States.

Recommendations for prosecutors and Judges:

Prosecutors and judges must make sure that basic human rights and freedoms are respected during this period.
Do not request or enter custody except on extraordinary occasions.

Do not ask the defendants to be physically notified during the initial period (search over telephone or other types of remote surveillance) and do not impose any type of work or request for treatment (these may not be available).

Do not penalise people who are insecure or foreign citizens, viewing them as de-facto flight risks.

Do not extend your detention orders without making sure this is necessary and there is no other option in considering changing public health conditions.

Consider the current lists of inmates in preliminary procedure and actively release as many as possible, giving priority to those who have health problems or are elderly.

Recommendations for lawyers:

Avoconi strongly for unconditional release in any case because of general public health risk. Work with your colleagues to exchange trials and short models, as lawyers in Belgium and France have done.

Persist on the court explaining (case after case) why an alternative to detention is not possible, given the danger to a person's life by putting them in custody.

You immediately file complaints when it's not.

Insist on free phone calls or video calls with banned customers to continue performing tasks, while visits may be limited due to health concerns.

Requestations for prisons:

Make sure those who are imprisoned and in the procedure have the opportunity to meet their attorneys personally and when this is not possible, secure an endless, free access to telephone lines confidentially and video links to allow the detainees to exercise their right to access a lawyer.

The bans by lawyers, friends, and family members should be limited to specific dangers and in time to allow physical access whenever possible.

Provide protection equipment instead of limiting access to lawyers and observers.

Prison monitors must have constant access to all objects, including quarantine units.

The Kosovo Institute for Justice in co-operation with CLARD, Fair Trials Europe and the Helsinki Committee are in the process of implementing the “Advancing the rights of defendants in criminal procedure”, supported by the Dutch Embassy in Pristina through the MATTRA Project. Within the framework of this project is the Kosovo Legal Experts Consultative Panel ( LEAP Kosovo).