Women and Justice: Court: Gjykata Supreme e Kosovës (Supreme Court of Kosovo)

Domestic Case Law

Ap.-Kz. Nr. 466/2011 Gjykata Supreme e Kosovës (Supreme Court of Kosovo) (2012)

Sexual violence and rape, Trafficking in persons

In the prosecution of an international human trafficking ring, B.D., a nightclub owner, was charged with Facilitating Prostitution in violation of Article 201 of the Provisional Criminal Code of Kosovo, for recruiting and organizing 16 Moldovan women for prostitution. His co-defendants B.J., M.G., and S.Z. were immigration officials charged with Abusing Official Position and Smuggling of Migrants in violation of Articles 339 and 138 of the Criminal Code, for enabling 35 illegal immigrants – mostly Moldovan women – to enter Kosovo, including by issuing fake identification documents to them, with the motive of obtaining unlawful material benefits for themselves. B.D. was found guilty by the District Court, while B.J., M.G., and S.Z. were acquitted. On appeal, the Supreme Court observed that the District Court based B.D.’s guilt exclusively on text messages sent to his mobile phone asking to make reservations to meet with various individuals identified only by nicknames. The challenged judgment did not clarify the identities of the persons behind the nicknames and did not assess whether they were indeed the alleged victims identified in the indictment. The lower court’s decision also made no reference to the statements of the alleged victims, particularly whether the statements corresponded to and corroborated the contents of the text messages. The court further held that the District Court’s judgment did not contain sufficient reasoning a proper assessment of the evidence regarding B.J., M.G., and S.Z’s alleged enabling of illegal immigration. The tribunal also faulted the lower court for failing to determine the complete facts, including the immigration registration system, movements of large sums in the defendants’ bank accounts, and transcripts of intercepted communications between the defendants. Accordingly, the Supreme Court annulled the District Court’s verdict and remanded for retrial. (Also available in English.)

AP-Ki. Nr. 192/2010 Gjykata Supreme e Kosovës (Supreme Court of Kosovo) (2010)

Domestic and intimate partner violence, Femicide

The defendant husband held enduring suspicions that the late victim, his wife, was involved in an extramarital affair, and required her to seek permission to leave their home without his or their children’s accompaniment. The victim one day attempted to leave the house without the defendant’s permission, resulting in an argument in which he shot and killed her. The defendant was charged with Aggravated Murder under Article 147 of the Provisional Criminal Code of Kosovo, found guilty, and sentenced to 15 years’ imprisonment. The defendant appealed, arguing that the offense is Murder Committed in a State of Mental Distress (Art. 148) rather than Aggravated Murder, because he at the time of the shooting had reacted to the victim’s insult and did not act out of jealousy. The Supreme Court rejected the argument and ruled that the court of first instance correctly qualified the crime as Aggravated Murder rather than Murder Committed in a State of Mental Distress. The court reasoned that the offense of Murder Committed in a State of Mental Distress did not apply because Article 148 requires that the mental distress happen through no fault of the accused, whereas in this case the victim’s insult was a reaction to the defendant’s previous false accusations, personal offenses, and even physical mistreatment. The tribunal further held that the court of first instance correctly found that the defendant had killed his wife for base motives as required for Aggravated Murder under Article 147, explaining that the defendant did not only kill his wife out of jealousy, but also because she had “dared” to attempt to leave the house without his permission. This reaction demonstrates the defendant’s belief that he was entitled to decide his wife’s right to exist, a “ruthlessly selfish concept” that showed “utmost disrespect for the natural right of another human being to live and is as such a base motive.” Accordingly, the sentence was appropriate. (Also available in English.)

PKL-KZZ-137/2011 Gjykata Supreme e Kosovës (Supreme Court of Kosovo) (2012)

Sexual violence and rape

The defendant was added to an expanded ongoing rape investigation against his associates, charged and convicted of rape in violation of Article 193 of the Criminal Code of Kosovo, and sentenced to three years of imprisonment. Following the Supreme Court’s affirmation of the first instance court’s judgment, the prosecutor filed a Request for Protection of Legality in favor of the defendant, claiming that the court of first instance failed to assess relevant evidence in favor of the defendant and based its decision on evidence which did not meet the requisite standard of “beyond any reasonable doubt.” In particular, the prosecutor argued that the conviction was based on the statement of the alleged victim in court, corroborated only by hearsay, that the victim in the immediate early stages of the police investigation did not claim the defendant had committed any crimes against her, and that her allegations against the defendant were evolving and increasing with time. The prosecutor noted that there was an absence of medical and physical evidence to support the conviction, and the police officers involved were not interviewed. The Supreme Court rejected the Request. The court first repudiated the notion that “beyond any reasonable doubt” was the requisite standard of proof under Kosovar law. It then noted that the hearsay was a direct confirmation that the victim had reported the rape to the witness. The tribunal dismissed the prosecutor’s argument that there was no physical evidence, because of the way the rape was committed – without physical violence as the victim surrendered under threat – it was meaningless to expect any trace of violence to be found. The court also saw no reason to discredit the victim on the basis that the victim only denounced the defendant one year after the commission of the rape, stating that it was “absolutely normal that a victim of rape finds the courage to denounce the aggressor only once the risk of revenge against the denouncer . . . has ceased.” Finally, the tribunal held that the defendant was investigated only at the end of the investigation against his associates, and that the details of the rape increased with time, were features common in many rape investigations and normally had no significance in the assessment of the evidence. (Also available in English.)

Ap.-Kz. 307/2012 Gjykata Supreme e Kosovës (Supreme Court of Kosovo) (2012)

Statutory rape or defilement, Trafficking in persons

The victim, a minor of the age of 15, was trafficked by men including defendants I.I. and Sh. G, from Albania to Kosovo, where she was imprisoned and forced to work as dancer at multiple restaurants. She eventually escaped and met two men who helped her find accommodations and work as a waitress. One of the men, S.B., had sexual intercourse with her, as did D.B., the manager who hired her as a waitress. I.I., Sh. G., and the men involved in the victim’s trafficking and employment were convicted of Trafficking in Persons contrary to Article 139 of the Criminal Code of Kosovo, and S.B. and D.B. were additionally convicted of Sexual Abuse of Persons under the Age of 16 contrary to Article 198. On appeal, the Supreme Court rejected the court of first instance’s ruling that the fact that the victim perceived I.I. as a person who had helped her was a mitigating circumstance, and agreed with the prosecutor that the punishment imposed on I.I. was very lenient, noting that I.I. had participated in the victim’s trafficking despite his awareness of the victim’s age and vulnerable situation, including her dependency on narcotics, presence alone in a foreign country, and lack of options to return home. The court accordingly increased I.I.’s sentence from one year to two years. The tribunal then dismissed Sh. G.’s argument that he was found guilty based only on the statement of the victim, holding that in the case of human trafficking, “it is the injured party who is the most reliable person.” The Supreme Court also agreed with the prosecutor that the punishment imposed on S.B. was very lenient, considering that he had intercourse with the victim, being aware of her age and vulnerable situation, and thus increased S.B.’s sentence from one year and one month to one year and six months. Finally, the court agreed with the prosecutor that the punishment imposed on D.B. was very lenient. The tribunal held that the trafficking of minors need not involve the use of force or violence, and that a conviction of sexual abuse of a minor could stand even if it was proven that it was done with the permission of the victim. The court accepted that the victim may have shown gratitude to D.B. for his assistance, but dismissed it as the “distorted perception” of a “vulnerable victim” and held that the gratitude did not change the criminal nature of the act or serve as an exculpatory circumstance. D.B.’s sentence was accordingly increased from two years to two years and four months. (Also available in English.)

Pml.-Kzz. Nr. 62/2013 Gjykata Supreme e Kosovës (Supreme Court of Kosovo) (2013)

Sexual harassment

The defendant was arrested for being suspected of touching a female police officer’s shoulder and trying to kiss her, and charged with Sexual Abuse by Abusing Position, Authority or Profession pursuant to Article 200 of the Criminal Code of Kosovo, and attempt to commit such an offense, among other crimes. The municipal court found the defendant guilty, and sentenced him to two years and four months of imprisonment and prohibition of public service for three years. The district court rejected the charge of Sexual Abuse by Abusing Position, Authority or Profession, and reduced the sentence to 12 months of imprisonment and prohibition of public service for two years. Thereafter, the defendant filed a Request for Protection of Legality against the lower courts’ decisions, arguing that the lower courts unlawfully convicted him of attempted Sexual Abuse by Abusing Position, Authority or Profession. The defendant argued that an attempt requires the offender to intentionally take immediate action toward the commission of the offense. Here, the commencing of the criminal offense was not proven because there was no action manifesting a sexual purpose behind his touching. The Supreme Court held the defendant’s claim was unfounded, pointing out that Article 200’s text states only “[w]hoever touches another person for a sexual purpose.” Here, the defendant not only touched the victim but also tried to kiss her, and was prevented from kissing her mouth only by the victim’s resistance. Hence, the defendant did not commit an attempt, but in fact completed the offense. The court, however, determined that the principle of reformatio in peius (prohibiting placing the appellant in a worse position after appeal) barred it from changing the lower courts’ qualification of the criminal offense. The court additionally rejected the defendant’s argument that the attempt in this case was not punishable, determining that an attempt to commit Sexual Abuse by Abusing Position, Authority or Profession was punishable under the Criminal Code. (Also available in English.)

PA-II-KZ-5/2014 Gjykata Supreme e Kosovës (Supreme Court of Kosovo) (2014)

Gender violence in conflict, Gender-based violence in general, Sexual violence and rape

The defendants, both Serbs and a police officer, were accused of forcibly abducting a Kosovar Albanian civilian female and raping her, thus committing the offense of War Crime Against the Civilian Population, in violation of Article 153 of the Criminal Code of Kosovo in addition to other offences. The court of first instance acquitted both defendants of war crimes, but the acquittal was annulled by the appellate court, which sentenced them to 10 and 12 years of imprisonment respectively. Both defendants appealed. The Supreme Court held that minor discrepancies of a witness’s statement should not be treated as discrediting. The tribunal found it proven that two Serbs did rape the victim, determined that the victim’s and witnesses’ statements were credible insofar as they did not relate to the identification of the suspects, and disagreed that the lack of medical report raised doubts that the rape occurred at all because such a report’s absence was well justified by the prevailing circumstance of an armed conflict. However, the court held that it had not been proven beyond any reasonable doubt, as required by law, that the defendants were the persons who committed the rape due to deficiencies in the suspect identification process. For example, the initial process had been carried out by the KLA MP years ago, and the court lacked evidence on how the process was carried out, the photos shown to the victim, and whether statements by the KLA blurred the victim’s memory. Subsequent identification was deficient because the defendants’ photos were obviously dissimilar from the other photos shown and the victim and witnesses thereby may have been guided in identifying the perpetrators. Further, the victim’s and witnesses’ description of the perpetrators were either general and not sufficient to conclude that the defendants were the perpetrators, or not sufficiently corroborated by other evidence. As a result, the tribunal granted the defendants’ appeal and acquitted the defendants. (Also available in Srpski and English.)