J U S T I C I A Legal Magazine of candidates of the initial legal education program 2008/2009 Kosovo Judicial Institute in Pristina Year I, Nr.1/2009 Publisher Kosovo Judicial Institute MEMBERS OF THE EDITORIAL BOARD Mr.sc.Afrim Shala, Mr.sc.Albert Zogaj,, Burim Çerkini, jurist, Valon Totaj, jurist Design and computer order Kosovo Judicial Institute © Kosovo Judicial Institute Publication of this magazine was made possible by the United Nations Development Programme, UNDP, Office in Kosovo Financed by the Government of the Kingdom of Norway TABLE OF CONTENTS Lavdim Krasniqi, Introduction........................................................................................................................ 1 Mr.sc.Afrim Shala Powers of pre-trial judge under the Code of Criminal Procedure of Kosovo................................................................................................................................... 3 Mr.sc.Albert Zogaj, Comparative aspects of the definition of ownership ......................................... 15 Arsim Hamzaj Universal Declaration of Human Rights, its role in protecting human rights and humanitarian intervention ................................................................................. 21 Burim Çerkini Attempt as phase of commission of criminal offence ....................................... 27 Fatmir Behrami The right of ownership ................................................................................................. 43 Isa Shala Proposal for execution and allowing of the enforcement ................................ 49 Mr.sc.Isuf Sadiku The right to a fair trial, public, within a reasonable time, by a independent and impartial court, in light of Article 6 of European Convention for the Protection of Human Rights and Fundamental Freedoms and Legislation in the Republic of Kosovo ................................................................................................. 61 Nehat Idrizi Criminal offence of trafficking in persons .............................................................. 67 Qerim Ademaj Provisional arrest and police detention ................................................................. 75 Sabri Halili Kosovo Judiciary, Reflections from the past and judicial ethos .................... 85 Mr.sc.Shaban Shala Determination of the value of the object of dispute .......................................... 93 Mr.sc.Shaban Shala New Law on Administrative Procedure, the report with the previous law and challenges in its implementation ................................................................... 99 Valon Totaj Pre marital contract ..................................................................................................... 105 Valon Totaj & Arsim Hamzaj Divorce in Kosovo ......................................................................................................... 111 Violeta Husaj-Rugova European Convention for the Protection of Human Rights and Fundamental Freedoms, with particular emphasis on Article 5 .................. 117 Kosovo Judical Institute JUSTICIA Lavdim KRASNIQI Director of the Kosovo Judicial Institute Dear readers of the magazine "Justicia" Some months before the Kosovo Judicial Institute started the imple- mentation of the Program for Preparation of future judges and pros- ecutors of Kosovo. During the period of training in this program, can- didates for judges and prosecutors, in addition to attending the training, they also assumed other professional obligations. One among them is the publication of the legal magazine named "Justicia". The magazine expresses the coherence and their ambition as future judges and prosecutors and implements their concrete initiatives. Magazine contains various research works of candidates who attend- ed training in the Initial Legal Education Program in Kosovo Judicial Institute. When the idea emerged for publication, the purpose of this maga- zine has been for the candidates of the Initial Legal Education Program to express their legal opinions, to promote research prima- rily in cases challenging the judicial system, to give opinions and interpretations for various institutes of the law, but always with thought that these works would be of informative character. But 1 Kosovo Judical Institute JUSTICIA looking at the approach and work of the candidates it is clear that these works other than informative character for all lawyers in Kosovo have solid values for our legal culture. Feature of this magazine is that topics are selected and edited by candidates themselves. We hope that the ideas, interpretations and opinions presented in this review will be useful for you in your daily work. Since this is the first number of the magazine which will now be annual, comments and suggestions are welcomed. 2 Kosovo Judical Institute JUSTICIA Mr.sc.Afrim SHALA COMPETENCES OF THE PRE-TRIAL JUDGE PURSUANT TO THE CRIMINAL PROCEDURE CODE OF KOSOVO1 Court as a basic subject of criminal proceedings realizes the trial function deciding in individual and collegial manner. In collegial manner the court decides in panels (large body panel, small panel and juvenile panel) as well as judicial college (college of three or five judges), whereas in individual manner the pre-trial judge takes the decision, judge who conducts the confirmation of the indictment hearing, the court president, the presiding judge, the individual judge when deciding on punishing order, the individual judge when adjudicating criminal matters in the summary procedure and the juvenile judge2. Pre-trial judge is one of the professional judges of municipal and dis- trict courts in Kosovo. The term "pre-trial judge" is a new term which is foreseen for the first time with the Code of Criminal Procedure of Kosovo. 1 The Criminal Procedure Code of Kosovo, was promulgated with the UNMIK Regulation 2003/26 dated 06.07.2003 and entered into force on 06.04.2004 (hereinafter CPCK). The CPCK was amended and supplemented with the Law 03/L-003, dated 03.11.2008, on amend- ment and supplementation of the Provisional Criminal Procedure Code of Kosovo. As this essay covers the competences of the pre trial judge pursuant to CPCK, in all instances where only the article (and/or paragraph) is named without specifying the law, we deal with the provi- sion of the CPCK. 2 Dr. Ejup Sahiti, Criminal Procedure Law, Prishtina 2005, pages 60 - 61. 3 Kosovo Judical Institute JUSTICIA Based on the provisions of CPCK, primarily pre-trial judge has the authority to act only in the preliminary procedure. Preliminary proce- dure is the first stage of criminal proceedings, which in itself includes investigations, the indictment and the indictment confirmation hear- ing. However, as we shall see below, in some cases pre-trial judge has the authority to act even if criminal proceedings have not formally begun (investigation), especially when it comes to limiting freedom of movement of the person. Some actions that are undertaken in the preliminary procedure by the pre-trial judge, under the provisions of the CPCK, are undertaken by the presiding judge or the panel during the main trial. Determination of competence of the pre-trial judge is a difficult issue, because the CPCK does not list these powers in a single legal provision, but they can be determined by analyzing a large number of legal provisions. In general pre-trial judge has the authority to decide on actions and measures in the preliminary procedure which limit the rights and fundamental freedoms (Article 9 parag.3). Basic feature of the preliminary procedure is that pre-trial judge does not take any action ex officio, but always with the proposal of the parties and other participants, even when deciding on restrictions placed on freedom and other rights of the person3. First, pre-trial judge has powers that until the indictment to decide on measures to ensure the presence of the defendant, to prevent the re-commission of the criminal act and ensure the successful develop- ment of criminal procedure (Article 268 parag.4). Under Article 268 of the CPCK parag.1 measures that can be used to ensure the pres- ence of the defendant, to prevent the re-commission of the criminal act and for the successful implementation of the procedure are: sum- mons, order for arrest, promise of the defendant not to leave his or her place of current residence, prohibition on approaching a specific place or person, attendance at the police station, bail, house deten- tion and detention on remand. Before the indictment pre-trial judge 3 Xhevdet Elshani, Mejdi Dehari, Criminal Procedure Code of Kosova, Part III - IV, Kosovo Judicial Instiutute, Prishtina, September 2008, Presantation X-XI, page 1. 4 Kosovo Judical Institute JUSTICIA also decides on extension of the prohibition of approach to a specif- ic place or person (Article 272), measure of attendance at the police station (Article 273) and the measure of detention on remand, if the conditions provided for by law are fulfilled. When it comes to limiting freedom of person, pre-trial judge is com- petent to decide on the appeal of the arrested person filed against the decision on arrest (Article 212 parag.6). Appeal does not suspend execution of the decision. Pre-trial judge decides on appeal within twenty four hours from the moment of arrest (212 parag.6). However, undoubtedly one of the most important powers of pre-trial judge is ordering, continuation (extension) and the termination of detention on remand. Under Article 282 of the CPCK parag.1, detention is ordered