UNMIK/FR/0049/01
FEATURE RELEASE -22
June 2001
Rule of Law
The New Draft Criminal Law and the Law of Criminal
Procedure:
Another Step in Building a
Democratic Kosovo
The drafting of a new Criminal Code and a new Code of Criminal
Procedure for Kosovo has been carried out by the Criminal Law Working
Group, one of the working groups of the Joint Advisory Council on
Legislative Matters The working group included national as well as
international experts (JAC/LM) from the UNMIK Legal Adviser's Office,
OSCE, the Council of Europe and ABA/CEELI.
The JAC/LM was asteblished
by the former Special Representative of the Secretary General (SRSG), Dr.
Kouchner, on 15 August 1999. The aim of setting up this body was to
involve both Kosovars and international experts in the law-making process.
The development and introduction of a comprehensive, fair
and modern European criminal law criminal procedure laws that promote the
rule of law and protect the human rights of all, represent a major
achievement of the JAC/LM and all the national and international experts
who have been engaged in building and consolidating the judicial system of
Kosovo.
Draft Criminal Code
The Draft Criminal Code defines clearly what
acts in Kosovo are crimes. It confirms basic principles of legality
and legitimacy, meaning that a person can only be punished for a criminal
offence if his/her action was clearly a crime at the time the action was
carried out. The draft also makes clear that the definition of
criminal acts should be determined strictly. It defines key concepts
of criminal responsibility, including rules on self-defence, the age of
criminal responsibility, and a person's mental state and
intoxication. The draft excludes persons under 14 years from
criminal liability (a separate Juvenile Criminal Code is being
drafted). The criminal responsibility of intoxicated persons
distinguishes between voluntary and medical intoxication.
The Draft Criminal Code states that in order for a person to be liable for a criminal act, there must be a link (causation) between the act and its consequences. This is very important for the courts, as in current applicable law, this link is not defined and is left to the courts to solve. In addition, an intentional act will lead to a more serious form of guilt, and a more severe penalty will be imposed upon the perpetrator if his or her actions exceed the intended consequence.
The Draft Criminal Code clearly defines key concepts, including the
preparation, attempt, or voluntary abandonment of crimes, and the
liability of accessories.
A fundamental change in comparison to
current applicable law is in the area of criminal sanctions. The
principal sanctions are long-term imprisonment, imprisonment, fines and
alternative sentences. The death penalty was abolished by UNMIK
Regulation 1999/24 of 12 December 1999 and replaced by imprisonment for a
period up to 40 years in accordance with UNMIK Regulation 2000/59 of 27
October 2000. Fines are considered as both principal and accessory
punishments and can vary between DM 100 and 50,000. If a person
cannot pay the fine, the court may replace it with an alternative criminal
sanction or measure.
The Code introduces five alternative measures to
give the courts the option of imposing imprisonment or fines. The five
alternative measures are:
·Suspended sentence. It can be given for
crimes for which imprisonment of under 10 years is stipulated. Such a
sentence is considered in the draft as an alternative one and not as a
criminal sanction, like as in the applicable law.
·Suspended sentence
with treatment. This sanction may be imposed only upon a drug addict or an
alcoholic who is convicted for the first time, and when the person in
question accepts obligations related to the treatment
programme.
·Suspended sentence under Probation Service supervision. The
Probation Service is a new body, introduced in the Draft Criminal Code,
which will be responsible for the execution of certain suspended
sentences, including measures of assistance, care and control of the
convicted person. Further rules governing this body will be specified in
the Law of the Execution of Penal Sanctions.
·Work in the public interest (community service) with the agreement of
the convicted person. The court may replace a prison sentence of up
to one year, or a fine of up to DM 5,000 with work in the public interest.
If the person fails to perform such work, the court can change the
sentence to imprisonment.
·Semi-liberty. The measure was introduced
for humanitarian purposes, to allow a person convicted of less serious
crimes to spend some hours during the day outside the correctional
institution. This way the person can continue working, studying, or
maintaining his/her relationship with his/her family, with the obligation
to return to the correctional facility at night.
The Draft Criminal Code, which is similar to criminal laws of many
countries, provides sanctions for a great number of crimes, such as crimes
against humanity, criminal acts against persons' life and property, crimes
against public order, crimes against the economy etc. A new provision
under "Crimes against Humanity" - un-justified delay in the release of
prisoners of war - addresses cases when a person delays the release of
prisoners of war or civilians, in violation of international standards.
A chapter, entitled "Criminal acts against sexual integrity", changes
the applicable law to provide greater legal protection of sexual
integrity, especially of women and children. Marital rape and
abusive sexual acts within the family are criminalized.
Draft Code of Criminal Procedure
Also of critical importance is the
Draft Criminal Procedure Code which is intended to clarify the law
applicable to criminal proceedings. The aim is to bring these
procedures in line with modern European standards in order to make
criminal proceedings both fair and efficient.
Changes in the structure
of the preliminary criminal procedure, especially relating to the role of
Public Prosecutor, Police and Investigating Judge, were discussed
extensively, and the JAC/LM has proposed a new investigative model, which
would change the role of the Investigating Judge and transfer the
investigative function to the Public Prosecutor. Two of the main
reasons behind this proposal are the need for enhanced efficiency in the
penal procedure and the need to have more involvement from the Public
Prosecutor and the Police in the investigations. However, a judge
will remain responsible for all decisions concerning any restriction of
rights and freedoms of an individual - for example, the taking of blood or
DNA tests, coercive measures, or the entering of personal data into a
database.
The Draft Code of Criminal Procedure also includes a rule
stating that detained defendants, including juveniles, shall be entitled
to a defence lawyer during interrogation and during the period that a
person is detained. The defendant shall also have the right to have
access to a lawyer at any time after the interrogation and access to
police and prosecution files.
A heavily criticized part of the current applicable criminal law procedure in Kosovo provides that law enforcement officials may detain a person for up to three days (72 hours) without bringing him/her before a judge. Such a provision is in breach of standards adopted in democratic societies. The provision in question has therefore been removed in the Draft Code of Criminal Procedure and a comprehensive system to allow for a speedy judicial review of arrests and detention by the police is to be set up in its place.
Note for editors
The full document may be
consulted online in English at http://www.unmik.org/. Albanian and
Serbian versions can be provided.
For a selection of photographs,
please contact Mr Ky Chung at 038 504-604 ext.
5467