by Andrea Lorenzo Capussela

Witness protection in Kosovo is one of the weak links in the fight against corruption and organized crime. The Code of Criminal Procedure recently approved, says Andrea Lorenzo Capussela however, does not improve things, but it makes the evidence even riskier for those who testify in court. 


That the protection of witnesses in Kosovo is a problem is well known. A report by the Council of Europe dated 2010 Kosovo identified as the most critical area in this regard. The issue is widely discussed in any “progress report” of the European Commission.

In addition, the first thirty pages of the judgment with which, in 2008, the Hague Tribunal for crimes in the former Yugoslavia (ICTY) has acquitted former KLA commander Ramush Haradinaj , are dedicated exclusively to describe how difficult it was Kosovo was persuading witnesses to appear and testify at The Hague.

The same court has convicted a former Kosovo for trying to persuade a protected witness not to testify against Haradinaj. And in the last trial, which acquitted Haradinaj definitively, other texts have refused to talk, or changed their testimony. The same thing happened in another trial in The Hague, the one against Fatmir Limaj, another hero of the KLA. Some witnesses of both processes have died prematurely.

It ‘also known that the crime in Kosovo is a phenomenon rooted not so much that of small vessels, as corruption and organized crime. The relation of cause and effect between the programs of protection of witnesses and crime is clear: without witnesses there are no convictions, no convictions and there is no deterrence. So if the protection of witnesses grows, the incidence of criminal impunity and fall, because who is sentenced ends up behind bars and who is going to commit a crime is a serious reason to think it through before you break the law, for example, extorting bribes. We might therefore expect the authorities in Pristina approval of measures that better protect witnesses, making the evidence (and the use of these by prosecutors) easier.

New code, rules that do not go

Kosovo government and parliament have done exactly the opposite. The new Code of Criminal Procedure, approved a few weeks ago, contains provisions which provide that: (a) if a witness who gave a statement to the police or the prosecution version changes during the trial, the prosecution can not resist referring to statements previously collected, but can only ask the witness if he remembers correctly the facts, (b) if the witness dies before he deposed in court, the statements made by the witness during the investigation can not generally be used as evidence and, within the strict limits in which they are used, have extremely limited value.

The old rules were different, more in line with the rules accepted by most legal systems. A prosecutor could challenge a witness who changed version, citing the statements previously made, and possibly fear the risk of prosecution for false testimony. And if a witness died before the trial, his statements could be used as evidence.

Objectively, the rule (a) is an incentive to intimidate the lyrics: I know a lady who saw me steal an apple spoke to the police, and threatened to dissuade her from testifying in court, the aforementioned lady has two options: to confirm accusations, and risk my revenge, or retract them, and do not risk anything. The rule (b), in turn, provides an incentive to kill the witnesses if the lady in the previous example to be intimidated, and I will kill her before the trial, the testimony on my stolen apple is worthless.

In both cases, the effect on witnesses is obvious: if they speak, they know they are exposed to intimidation, and if you are not intimidated, the decision to kill may be a rational choice for the criminal against which they decided to testify. With these laws, the witnesses are destined to become a rare species.

It is not an innocent oversight

The line of legislative policy that emerges from these measures is to discourage witnesses from presenting in court, in order to weaken the repression of crime. This is not an oversight innocent.The process of code review lasted more than a year: one wonders how measures of this nature can be passed through expert committees, meetings of government and parliamentary sessions with no one, neither ICO nor EULEX mission nor the parliamentary opposition lift a finger.

But there’s more: the original draft proposed the application of the new rules only to new court cases, and not to those pending. In parliament, however, was add an amendment that seeks to make the new code applicable to all proceedings, old and new.

This choice seems to be completely irrational and unprecedented. For obvious reasons: it would be like changing the rules of the game to game started. For example chess, would be how to decide, when the game starts, the horse can not jump over other pieces. Maybe just after you’ve sacrificed a rook for a horse, precisely because of this characteristic. Attorneys and lawyers, such as chess, strategies have on the conduct of processes, which depend on the rules of the game if they change, a move that was a winner can be a loser.

Saving Private Limaj

And then, because the parliament in Pristina tried to change the rules of the game? The trial for war crimes against Fatmir Limaj and his fellow KLA in what is known as the “Klecka case,” is precisely based on the statements of a witness who has since died. The story is well known: a man has laid prosecutors and on the basis of those allegations was made to arrest. The witness was, however, committed suicide before you can repeat the accusations in court (according to the press, to push the gesture would have been just the unbearable psychological stress due to having to accuse powerful men). In the first instance, Limaj and his companions were acquitted because the judges decided that the words of a dead man could not be accepted as evidence (in this they are in fact anticipated the application of the new rules).

But the acquittal was appealed, and the Supreme Court ruled that the testimony could be used, quashed the first-instance judgment and ordered a new trial, which is now underway. Limaj and his co-defendants were then immediately rearrested. The statements of the witnesses are now deceased so much solid evidence, since under these defendants were arrested twice, and are still in custody. The presumption of innocence remains, of course, but after the decision of the appeal a conviction is likely.

But if the new rules were to be applied to cases pending as want the parliament, a new absolution would be inevitable, for without the testimony of the suicide allegations do not stand up. The answer to the question, then, is that the parliament is presumably trying to save Limaj from a long prison sentence.

An important test for Kosovo

The amendment in question, it seems, is poorly written, and could not move, with the result that the pending court would apply the old rules. If so, this case, the process “Medicus” and other proceedings will not be distorted. But the negative effect of the rules (a) and (b) of future trials remains relevant. Kosovo authorities should immediately change the code, legislando for the repression of crime, and not to its detriment.

Consider the issue as an important test for Kosovo. If the opposition and the public, supported, as I hope, the European Union and the international community, will convince the government and parliament to amend these provisions mean that at least the worst excesses of the elite in Kosovo can be contained. Otherwise, it would mean that the political system in Kosovo continues to be no checks and balances.


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