JUSTICIA Legal journal of candidates from the Initial Training Program 2013/2015 at the Kosovo Judicial Institute Year V, No 5/2015 Prishtina, 2015 Publisher Kosovo Judicial Institute MEMBERS OF THE EDITORIAL Murat Hulaj Leonora Shemsiu-Kadriu Fatime Dermaku Naim Meholli Ramiz Buzhala Design and editing: Kosovo Judicial Institute Published by Kosovo Judicial Institute © IGJK 2015, All rights reserved The content of this material may not be reproduced, multiplied or forwarded to any other form of electronic, mechanical, photocopy or recorded without the written consent of the Kosovo Judicial Institute (KJI). Views of the authors do not necessarily reflect the views of Kosovo Judicial Institute. Publication of this journal was made possible by the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH, Legal Reform Project in Kosovo, engaged by Publication of this magazine was made possible by the Deutsche Gesellschaft für Internationale, On behalf of Federal Ministry for Economic Cooperation and Development Lavdim Krasniqi FOREWORD……………………………………………….……………………..........................5 Murat Hulaj & Sebahate Beqiri LEGAL POSITION OF THE JUDGE IN PRELIMINARY PROCEDURE IN RELATION TO THE OTHER SUBJECTS DURING PRELIMINARY INVESTIGATIONS……………………6 Leonora Shemsiu – Kadriu REHABILITATION AND THE DISCLOSURE OF THE INFROMATION FROM THE CRIMINAL RECORD...........................................................................................................…...21 Fatime Dȅrmaku THE USUFRUCT…………………………………………………………………………..........40 Naim Meholli & Sabedin Mushica DIVERSITY MEASSURES ON JUVENILES………………………………………………….55 Ramiz Buzhala & Kujtim Krasniqi PLEA AGREEMENT……………………………………………………………………………60 Fatime Hasani & Qefsere Berisha EUROPEAN CONVENTION ON HUMAN RIGHTS AND EUROPEAN COURT OF HUMAN RIGHTS, DISCRIMINATION WITH EMPHASIS ON DISCRIMINATION AGAINST WOMEN………………………………………………………………………………………....72 Mustafë Tahiri & Ilir Bytyqi COVERT AND TECHNICAL INVESTIGATIVE MEASURES……………………………....80 Ilir Berisha MEASSURES TO INSURE THE CLAIM CHARGE..........................................................…....90 Fatos Ajvazi REASONS THAT BRING DIVROCE THROUGH ANNULMENT……………………....…...99 Mentor Bajraktari & Besnik Bislimaj INITIAL HEARING ACCORING TO THE CRIMINAL PROCEDURE…………………….121 Albina Shabani-Rama JUDICIAL ETHICAL CODE AS A NECESSARY FACTOR IN INCREASING THE PUBLIC TRUST IN JUDICIAL SYSTEM………………………………………………………………131 Naime Ahmeti THE DEFENDANT, THE RIGHTS OF THE DEFANDAND IN THE CRIMIMNAL PROCEDURE…………………………………………………………………………………..137 Mevlide Kosumi & Rukije Sheshivari JUVENILE CRIMINAL PROCEDURE…………………………………………………..…...145 Bekim Avdimetaj & Fatmir Dobraj & Lumnije Krasniqi THE EXEMPTION FROM UNLAWFULNESS……………………………………………..157 Drilon Haraçia STATUTORY LIMITATION FOR CRIMINAL PROSECUTION AND ENFORCEMENT OF CRIMINAL SANCTION……………………………………………………………………..167 Ylber Shurdhiqi & Violeta Namani & Valdet Avdiu & Avdulla Abedini CORRUPTION OFFENSES………………………………………………………………….178 Dear readers, It is with great pleasure? that I address you through this legal journal, the publication of which has now become a tradition of every generation for judges and prosecutors, occupying an important place in the array of legal literature and publications of KJI. This journal contains the papers of judges and prosecutors candidates who are attending the KJI Initial Training. The journal covers various topics treating different legal institutes, aspects of local and international legislation as well as issues of legal practice. The purpose of this legal journal, in addition to building the skills of candidates in the area of research and legal drafting, is to provide professional support to young jurists, judges, prosecutors and other legal practitioners in Kosovo and beyond. The journal Justicia is printed by every generation of the candidates of the Initial Training Programme and this is the fifth (5) edition. The topics for the journal are selected and edited by the candidates themselves. The reading of the sixteen papers of the journal indicates that the candidates have studied and analysed legal issues with special focus on changes to legislation and legal institutions that require further attention of the legal science in Kosovo. We hope that the topics elaborated by this edition of “Justicia” journal will provide useful information and will serve all legal professionals and other readers in order to have an opportunity to learn different perspectives. MSc. Lavdim Krasniqi Director of the Kosovo Judicial Institute 5 Murat Hulaj Sabahate Beqiri LEGAL POSITION OF THE PRE-TRIAL JUDGE IN RELATION TO OTHER SUBJECTS DURING THE PRELIMINARY INVESTIGATION ABSTRACT We have recently witnessed rapid changes to the criminal procedure legislation in almost all countries of the Western Europe towards promoting individual rights and expediting criminal procedure, changes which also engulfed Southeast Europe and Kosovo. A shared feature of these changes is adoption of the Provisional Criminal Code and Kosovo Criminal Procedure Code, for this first time in 2004 by the Parliament of Kosovo, in order to ensure a more functional judiciary relative to CPL of the previous system. The implementation of the KCPC brought about a new outlook on the role of the justice, police and prosecution bodies with a shift from inquisitorial to accusatory system, as the former was rendered useless and non-functional. Under the accusatory system, currently in effect, the competences over investigations, which had previously been the prerogative of the investigative judge, have now been moved to the state prosecutor, an action similarly adopted in almost all Balkans countries. Among many novelties contained in the KCPC is also the determination of the special position and the role of the pre-trial judge. Under KCPC, which entered into effect on 01 January 2013, the position of the pre-trial judge has been promoted considerably. Key words: pre-trial judge, role, authorizations, competences, other subjects, etc. Msc. Murat Hulaj, Professional Associate in Basic Prosecution - Pejë, Judge Canddiate of the 5th Generation of ITP. Sabahate Beqiri, Professional Associate in Basic Prosecution, Prosecutor Candidate of the 5th Generation of ITP. 6 LEGAL POSITION OF THE PRE-TRIAL JUDGE IN RELATION TO OTHER SUBJECTS DURING THE PRELIMINARY INVESTIGATION Introduction The key tenet of the preliminary procedure is that the pre-trial judge does not undertake any action by virtue of official position, with a minor exception, but always at the reasonable request of parties and other participants to proceedings, under the situations and conditions provided for in the Kosovo Criminal Procedure Code in effect since 01 January 2013, when deciding on the matters related to restriction of person’s rights and freedoms. In this sense, the Criminal Procedure Code seems to strive to uphold the principle of the equality of parties also in the preliminary procedure, where the role of the state prosecutor is dominant. Although actions, decisions and orders are taken at the proposal of the parties rather than by virtue of official position, these actions of the pre-trial judge have an important role, as they affect the rights and freedoms of an individual, i.e. restriction of these rights, while the investigative action of prosecution and police is thereby granted legitimacy. If such actions were to be undertaken without due notice, i.e. orders from pre-trial judge, they would constitute inadmissible evidence during the trial, provided for in more detail under Article 257, paragraph 2 of the KCPC1. The role and activities of the pre-trial judge are placed in motion through adequate decisions, orders only at the request of parties and other participants in the preliminary procedure. This paper will therefore seek to reflect on the role and competences of the pre-trial judge in the following order: 1. Decisions, orders at the request of the state prosecutor - police, 2. At the request of the defendant and his attorney, and 3. Decisions, orders at the proposal of the injured party, his legal and authorized representative. 1. Decisions, orders at the proposal of state prosecutor - police 1.1. Commencement, continuation, expansion and termination of investigations Upon deciding to commence investigations2 on the case placed before him for review following analysis of the criminal denouncement and finding that the content constitutes reasonable doubt of existence of crime commission and in order to shed light on the criminal act, the Prosecutor performs informal and formal action by reaching a written decision to commence investigations, a copy of which is immediately submitted to the pre-trial judge in view of Article 104, paragraph 1 of the KCPC3. This action of the prosecutor also holds practical importance as it represents the starting point of the duration of an investigation against a person, for a period no longer than 6 1Paragraph 2 states that the evidence obtained in violation of criminal procedure is inadmissible for cases when this Code or other legal provisions specifically state that. 2.Article 102 paragraph 1 of the KCPC, p. 45. 3 Article 104 par.1 states that the investigation commences with the decision of the state prosecutor. Such decision shall specify the person who is subject of investigations, the time of commencement, description of the crime and its elements, legal designation of the criminal acts, circumstances and facts justifying the reasonable doubt on the crime, any provisions authorizing covert and technical