Al Jazeera: What is behind the decision to transfer prisoners from Denmark to Kosovo

On Thursday, Kosovo's Assembly ratified the Denmark lease agreement a prison in the southern town of Gjilan, in which some 300 Danish prisoners are expected to serve sentence. That's how you start writing Al Jazeera For one of the issues recently commented on in Kosovo, the newspaper Express submits.

The session's session adopted the draft draft draft agreement with Denmark by 86 votes for, seven against and no abstention. Similarly, the Government of Kosovo has adopted the draft law on ratification of the contract between Kosovo and Denmark, envisioning the exploitation of the correctional centre in Gjilan for executing the sentences of Danish citizens, for which Denmark will allocate 200m euros.

Kosovo and Denmark justice ministers signed an agreement in 2022 in Copenhagen after signing a letter of purpose in December 2021 for the transfer of 300 prisoners from Denmark to Gjilan.

According to the Treaty, Denmark will not send to Kosovo prisoners convicted of terrorist acts, war crimes and prisoners with serious mental disorders diagnosed who seek medical attention outside the prison. The contract envisions the sentence being carried out according to Danish rules and in line with Denmark's international obligations. Therefore, prisoners will carry out their sentence under conditions that generally correspond to prison conditions in Denmark.

Denmark has earlier announced that their prison capacity is 100 percent, since the number of prisoners has increased by almost 20 percent since 2015.

This Denmark decision prompted reactions and objections from a series of human rights organisations and judicial experts who feel that in Kosovo it is not possible to observe and implement laws as implemented in Denmark.

The UN Committee against Torture (CAT) in December last year praised the Danish government's plans to transfer 300 prisoners deported to a prison in Gjilan, due to lack of resources in Danish prisons. The report reflects the committee's concerns about possible human rights violations and advises the Danish government to cancel its plans.

Do Denmark Respect the Convention Against Torture?

CAT monitors whether countries such as Denmark respect the Convention against Torture. The report says the state should ensure that all prohibited persons are provided with all basic legal guarantees from the beginning of the detention, both in law and in practice. That includes the right to a lawyer with guaranteed privacy during private meetings, including access to free legal assistance. It also includes the right to full information on their rights, the reasons for arrest and any charges against them, in a language they understand and in a reachable way.

These include the right to contact a relative or another person according to their choice immediately after they are arrested in connection with the removal of freedom. In cases where this right is limited for legitimate reasons related to an ongoing investigation, such restrictions must be determined by law, limited time with a specified maximum length of time and submitted to judicial consideration and independent approval by an superior officer.

In the report, the committee expressed concern over the possible consequences that the transfer could have on the approach of prisoners to health care and family visits. Although the state has announced that the rented prison facilities will be subject to Danish law, there is still danger of possible acts of torture or mistreatment by prison staff.

There is uncertainty about how violence of this nature will be investigated and monitored. The committee also expresses concern about the potentially discriminatory nature of this regime, which is allegedly expected to differentiate the treatment of prisoners based on nationality and family situation.

The report concludes that the Danish state must refrain from renting prison facilities in Kosovo and ensuring that those deprived of freedom are not discriminated against because of their nationality or family situation.

The state should also ensure that all prisoners have access to health care and effective appeals under equal conditions. At the same time, unreasonable or discriminating restrictions should not be imposed on their right to maintain family ties while in prison.

Concern for Human Rights

As one of the reasons for opposing the sending of prisoners from Denmark to Kosovo, organisations from Denmark and the world declare that Kosovo is not a member of the UN and the Council of Europe, and for that reason it is not obligated to international law under the UN Convention against Torture or the European Convention on Human Rights. The World Anti - Torture Organization also strongly criticised the agreement.

“Dianmarca is a key player at the international level when it comes to fighting for human rights and the fundamental right to protection. They have the opportunity to set a good example for the rest of the world, but now they are being guided by the worst example”, says Helena Sola Martin, a political adviser to the organisation.

The “is central to think that you can implement this project without violating Denmark's international obligations. That's just not possible. You cannot make sure that a prison is run by A in Z according to Danish standards. Especially not when Denmark gives up a part of its jurisdiction in Kosovo”, says Sola Martin.

She points out that these are individuals condemned by Danish law who must suffer punishment according to Danish rules on Danish soil. According to her, Denmark is in practice trying to violate its international obligations.

The Institute for Human Rights and Dinjitia questioned how the same conditions would be implemented in practice “as in a Danish prison” and in line with Denmark's international obligations.

Before signing the contract, the Danish Correspondent Service visited the prison in Gjilan and found that, among other things, there is mold, that drinking water smells so much chlorine that most prisoners drink water in bottles and that prison generally shows signs of lack of maintenance.

At the same time, according to the Criminal Service, it is a prerequisite to create, among other things, kitchens where prisoners can cook and vacation and work buildings so that conditions can be more like Danish prisons. Therefore, prison must undergo extensive renovation before it is ready to house Danish prisoners.

Under the original plan, the first prisoners sentenced to deportation had to begin serving the sentence in Kosovo early 2023. Danish Justice Minister Peter Hummelgaard said in February last year that the plan was delayed by about two years.

“It could be fully ready within 21 to 26 months, after which the first prisoners could enter”, he explained.

In Amnesty International in Norway, Gerald Kador Folkvred also believes it is difficult to see how Denmark will be able to meet its international obligations in Kosovo.

He is political adviser to the Norwegian branch of Amnesty and followed the process when Norway rented prison facilities in the Netherlands several years ago. The deal eventually drew criticism because it was difficult for Norwegian authorities to hold the charge in a Dutch prison.

Gerald Kador Folkworth points out that the main reason thought to work was because both countries were required to respect human rights, while the culture of the prison system in the Netherlands and Norway was very similar. Here, the situation is different in Kosovo, which is not binding on the European Convention for Human Rights.

When Kosovo is not obliged to respect European conventions for human rights, there is danger that the standard will be lower for prisoners in Kosovo. Therefore, it is difficult to see how to apply without violating the rights”, he says.

Even though Denmark has no jurisdiction in all areas, the government has defended the pledge made by Kosovo in agreement to meet Denmark's international obligations, even when prisoners are out of Danish jurisdiction.

The purpose of the big and complicated bill that we presented is that we have to ensure that the rights and duties of prisoners during the suffering of their sentence basically correspond with those of prisoners sentenced to prison exile in Denmark”, former Justice Minister Mattias Tesfaye said earlier.

Fear of Law Abuse

According to the current government and past, prison in Kosovo should be used exclusively for prisoners sentenced to deportation. But the law thus allows for the broader use of prisons, which some organisations and politicians have first criticised as the limit to human rights violations.

It was not decided that it could only be those who were sentenced to exile. There could be someone else. It won't be against the law, objections or contract transfer of some of the others”, says Peter Vedel Kessing, professor of international law and senior research associate at the Institute for Human Rights, for Danish independent Altinget portal.

Eva Smith, a professor at the Copenhagen University Law Faculty, adds that it is disturbing that according to the text of the minister and agreement designers, people who have not been sentenced to expulsion from countries outside the EU may be accommodated in Kosovo.

Louise Halleskov, a professor of public law at the University of Aarhu, essentially shares the assessment that it is legally possible to send Danish citizens to Kosovo. In addition to the general wording of the law, it refers to the fact that a prisoner is defined simply in contract as an adult who has been sentenced to Danish prison.

In other words, internal regulations are not limited to persons convicted of deportation, and the text may include other persons sentenced to Danish prison, who are not sentenced to deportation. It is much harder to respond with absolute certainty if the law in practice will enable Danish citizens to suffer the sentence in Kosovo”, Halleskov told Altinget.

According to the Institute for Human Rights, it is essential that prisoners not suffer loss of rights when transferred to Kosovo.

A huge question raised by this proposal is whether Danish authorities will continue to be responsible for human rights for prisoners, even if they are not on Danish soil”, says Louise Holck, director of the Institute.

Otherwise, we can end up in a situation where a prison officer from Kosovo beat a prisoner or subdues a prisoner in torture, and the prisoner is not protected by human rights and may complain, for example, at the European Court for Human Rights, because Kosovo is not linked to human rights. In practice, this means that prisoners risk losing their rights during flight to Kosovo, unless authorities ensure they are protected from the Danish state's obligations for human rights”, Holck points out.

Amnesty International has called for future agreements between Denmark and Kosovo to make it clear that prisoners will be under Danish jurisdiction at any time or place.