The legal basis for the enforcement of criminal sanctions in

Dr.sc.Resmi Hoxha

Mob.nr: +377 44 169018

Email: info@avokatura.com

Resmi Hoxha,

Zahir Pajaziti Square, H-1 No.8

10000 Prishtina

Kosovo

Abstract

In this period Kosovo issues its own laws and in accordance with the laws it raises its Correctional Institutions.

This period was very fruitful and successful for Kosovo in every area, so also in establishing a legal-legislative basis for the execution of criminal sanctions. But in 1989, this autonomy was violently suppressed by Serbia and Kosovo again becomes part of Serbia and Serbian laws are being enforced.

In 1999, after the war in Kosovo, with the help of the international factor, Kosovo gained independence and started building Kosovo in every respect. In 2008, Kosovo declares independence and issues its own constitution. In accordance with the constitution, many new laws are issued and some existing laws are supplemented and amended.

Criminal sanctions have its source in the Constitution of Kosovo [1], the Criminal Code of the Republic of Kosovo and the Criminal Procedure Code, [2] The Law on Execution of Criminal Sanctions [3], Juvenile Justice Code [4] Kosovo Correctional Services Internal Rules, Administrative Instructions of the Ministry of Justice, International Prison Rules, European Prison Rules and other international acts in the field of protection of human rights and freedoms. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has found its place in the Constitution of Kosovo.

The Constitution of Kosovo provides for the right to a fair and impartial trial, to whom everyone guarantees equal protection of the rights in the proceedings before the courts, other state bodies and public authorities. [5] The Constitution of Kosovo provides for the right to a fair and impartial trial, to whom everyone guarantees equal protection of the rights in the proceedings before the courts, other state bodies and public authorities. [6]

The Criminal Code is of particular importance in the field of justice, as it defines criminal offenses the penalties and the measures taken against the perpetrators of various criminal offenses.

The Criminal Procedure Code foresees the role of the parties, the role of evidence, initial investigative actions, initial and second counting of the Accusation, guilty plea agreement and other alternatives to the trial, the trial procedure, and remedies. Of particular importance this code has in those parts of its provisions which regulate the enforcement of detention, the taking and announcement of the verdict, According to the law on the execution of penal sanctions, the execution of criminal sanctions, misdemeanor sanctions and mandatory treatment measures, as well as the application of pre-detention measures.

By-laws, such as Administrative Instructions, Internal Rules of Procedure, Housing Orders, etc. in accordance with the law, determine the correct way of working in the correctional institutions.

Keywords. Kosovo, Legal Basis for Implementation of Penal Sanctions in the Republic of Kosovo, Legislation, Constitution, International Matters-UNMIK-

The legal basis for the enforcement of criminal sanctions in the Republic of Kosovo

The legal and practice aspect of the execution of criminal sanctions in Kosovo from 1945 to today has gone through several stages of socio-political development and change. Since 1945, when Kosovo was part of the Republic of Serbia in the former Yugoslav state, the laws of the Yugoslav state were applied. This period lasted long in 1974 when Kosovo gained political independence and became part of the Federal System of Yugoslavia. In this period Kosovo issues its own laws and in accordance with the laws it raises its Correctional Institutions. This period was very fruitful and successful for Kosovo in every area, and therefore in the execution of criminal sanctions. But in 1989, this autonomy was violently suppressed by Serbia and Kosovo again becomes part of Serbia and Serbian laws are being enforced. In this period of time Kosovo began to reject all orders and duties from Serbia, which many people are forced to flee, while one part was convicted of long sentences and was tortured and commended extremely. In 1999, after the war in Kosovo, with the help of the international factor, Kosovo gained independence and started building Kosovo in every respect. In 2008, Kosovo declares independence and issues its own constitution. In accordance with the constitution, many new laws are issued and some existing laws are supplemented and amended. The application of criminal sanctions is done on the basis of the highest constitutional and legal acts of the state and on the basis of international acts and norms. Criminal sanctions have its source in the Kosovo Constitution [8], the Criminal Code of the Republic of Kosovo and the Criminal Procedure Code, [9] Law on Execution of Criminal Sanctions [10] Juvenile Justice Code [11], Rules Interior Ministry of Kosovo Correctional Service, Administrative Instructions of the Ministry of Justice, International Prison Rules, European Prison Rules and other international acts in the field of human rights protection.

Deprivation of liberty under the Constitution of the Republic of Kosovo

The Constitution is the highest legal act of the Republic of Kosovo, so laws and other legal acts are in accordance with this Constitution. [12] Such a response is found when we read the Constitution of the Republic of Kosovo - Article 16 paragraph 1. The Constitution is the document on which is based the entire legislation of the country, which regulates relations between the state and persons, state bodies between them and even defines the basis for regulating the relations between the two. Legislation not only needs to be based on the constitution, but it must be compatible with it. The Constitution is a source or starting point and a framework for other laws of the country. The Constitution defines the general principles and mechanisms of the special organization of the state. It creates government institutions by sharing power between them so that the rule begins with state mechanisms. Usually, the powers granted to state institutions are limited and an inter-control mechanism is established, thus maintaining the balance of their normal functioning. In order not to leave the judicial system, it is important to say that an independent judiciary, which is also ensured by the Constitution, is fundamental to the function of the rule of law. For the functioning of the rule of law, the Constitution of the Republic of Kosovo foresees the direct implementation of international agreements and instruments. [13] Human rights and freedoms guaranteed by international agreements and instruments are also guaranteed by this Constitution. International conventions apply directly to the Republic of Kosovo and have priority, in case of conflict, to the provisions, laws and other acts of public institutions [14]. The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment has found its place in the Kosovo constitution. Just as the most essential thing for man, the Right to Life, is part of constitutional treatment, [15] where it is emphasized that each individual enjoys the right to life. Of special importance is the prohibition of the death penalty.

[16] The Constitution guarantees the rights of liberty and security, so no one can be deprived of liberty except in cases provided for by law and by a decision of the competent court when declaring the person guilty and imposing a prison sentence for a suspicion based on committing of the offense. Only in cases where deprivation of liberty on a reasonable basis is considered necessary to prevent the commission of a criminal offense and only for a short period of time shall be determined before the trial in the manner prescribed by law. [17] Anyone deprived of liberty must be made aware immediately of the reasons for deprivation in the language that he understands. Written notification on the grounds for deprivation should be made as soon as possible. A person who is deprived of liberty without a court order shall, within forty eight (48) hours, be served in front of a judge who decides on his or her detention on remand not later than forty eight (48) the deprived person is brought before the court. Every suspect who is arrested has the right to be tried within a reasonable period or to be released pending trial unless the judge finds that the person poses a risk to the community or has a risk of his or her escape trial. A person who is deprived of liberty must be immediately informed that he has the right not to make any statement and that he is entitled to a defense counsel at his / her choice and has the right to inform without delay of this person of his choice. Persons deprived of their liberty by arrest or detention shall have the right to use legal remedies to challenge the lawfulness of arrest or detention. The case will be decided by the court within a short deadline and if the arrest or detention is unlawful, the release of the person will be ordered. Anyone who has been detained or arrested in violation of the provisions of this article shall be entitled to compensation in the manner prescribed by law. The person serving the sentence has the right to complain about the conditions of deprivation of liberty, in the manner prescribed by law. The president pardons the criminal sanctions imposed on individuals in accordance with the special law on pardon.

The Constitution of Kosovo provides for the right to a fair and impartial trial, to whom everyone guarantees equal protection of the rights in the proceedings before the courts, other state bodies and holders of public powers. [18] The Constitution when it speaks of the Principle of Legality and Proportionality in Criminal Cases states that no one can be charged or punished for any offense which, at the time of commission, was not determined by law as a criminal offense, with the exception of offenses which at the time of their commission, according to international law, constituted genocide, war crimes or crimes against humanity. [19] The sentence imposed for a criminal offense can not be more severe than it was prescribed by law at the time of commission of the offense, and the severity of the punishment can not be disproportionate to the criminal offense. Penalties are determined according to the law that was in force at the time of committing the offense, with the exception of offenses for which subsequent applicable law is more favorable to the perpetrator.

In the chapter entitled to not be tried twice for the same offense, the Kosovo Constitution provides that a person who has committed a criminal offense can not be tried more than once for the same offense. [20] Fundamental rights and freedoms of Kosovo citizens are guaranteed guaranteed by the Constitution, but may be limited by law only [21]. Fundamental rights and freedoms guaranteed by this Constitution may be restricted to such an extent that it is essential for an open and democratic society to fulfill the purpose for which restriction is permitted. Restrictions on fundamental rights and freedoms guaranteed by this Constitution can not be made for any purpose other than those for which they have been designated. In the case of limiting human rights and the interpretation of those limitations, all public power institutions, especially the courts, are obliged to pay attention to the essence of the limited right, the importance of the purpose of restriction, nature, and volume restriction, the relationship between the limitation and purpose intended to be achieved, and to consider the possibility of achieving that purpose with a lesser limitation.

One of the powers of the President under the constitution is the proclamation of individual forgiveness in accordance with the law on forgiveness. [22] The Constitution is the basis and framework for the hierarchy of the country

Principles of criminal punishment under the Criminal Code of the Republic of Kosovo

Following the Constitution of the Republic of Kosovo, the Criminal Code is of particular importance in the field of justice, as it defines criminal offenses the penalties and measures taken against perpetrators of various criminal offenses.

This Code criminal offenses and criminal sanctions foresees only those conduct that violates human rights and freedoms as well as other rights guaranteed and protected by the Constitution of the Republic of Kosovo and International Law. [23] In determining the criminal punishment for criminal offenses, penal sanctions and mandatory treatment measures, the Kosovo Criminal Code respects the principles such as:

· The principle of legality,

· The principle of humanism,

· The principle of justice,

· Principle of legality

In accordance with the principle of legality, no person may be convicted of a criminal offense if before its commission is not determined by law as a criminal offense and there is no criminal sanction or mandatory treatment measure for that offense.

In determining guilty and punishing all perpetrators of criminal offenses before the law are equal and responsible. Appointment of the conviction will be fair and in accordance with the guilty verdict. From this point of view, the Criminal Code of Kosovo in the determination of guilt and punishment adheres to the principle of justice and that of humanity.

In the provision of criminal offenses, measures and the imposition of a criminal punishment, the Code provides for the degree of risk of a criminal offense and in compliance with it, while respecting human rights, it also adheres to the principle of proportionality, which means that the criminal punishment will be imposed to the person in accordance with the proportionality of the danger posed by the criminal offense to the suburban community.

The definition of offenses under this Code is precisely defined and does not allow interpretation by analogy. In case of ambiguity, the definition of the offense and the criminal punishment is determined in favor of the person against whom the criminal procedure is conducted. Criminal Code of the Republic of Kosovo, Article 4 foresees criminal sanctions and measures of mandatory treatment, which are imposed on perpetrators of criminal offenses. [24]

Criminal Procedure Code of Kosovo

The basic object of the criminal procedure is the criminal case [25]. The criminal case is a real event, which by its content indicates a concrete criminal offense and its perpetrator, for whom criminal proceedings are conducted. [26] After the war in Kosovo, the justice system faced various problems and difficulties. Thus, according to the Yugoslav Criminal Procedure Code 1999, there was an indispensable criminal justice system where investigations were conducted on the basis of criminal reports and were dominated by the Investigating Judge. Opportunity and means were insufficient to investigate crimes of a serious criminal nature, such as organized crime. [27]

The United Nations Mission in Kosovo (UNMIK), in cooperation with international and local experts, in 2003 drafted and approved the Provisional Criminal Procedure Code of Kosovo, by which the court retained some of its investigative powers, but that the prosecutor and the defender had significantly wider roles.

The 2003 Code, amended and completed in 2008, had some shortcomings, as it provided more judicial resources than needed to guarantee human rights. Second, there were some parts that hindered the successful investigation of serious crimes. Third, human rights for EU membership envisioned some timely conditions that Kosovo should implement, but which were either unclear or unclear. Fourth, there were many cases where the Code had to be clarified to clarify the procedures.

The Criminal Procedure Code of 2013 includes robust human rights guarantees and recognizes the needs and constraints of Kosovo as well as its legal and legal tradition. This new Code of Criminal Procedure foresees changes to the structure such as the amendment of the Law on Courts, the lifting of the confirmation hearing, etc.

The Code foresees the role of the parties, the role of evidence, initial investigative actions, initial and second counts of the Accusation, guilty plea agreement and other alternatives to trial, judicial review procedure, and remedies.

Of particular importance this code has in those parts of its provisions which regulate the enforcement of detention, the taking and announcement of the verdict,

Law on Execution of Criminal Sanctions of Kosovo

The purpose of this law is the execution of penal sanctions, counterfeiting sanctions and measures of compulsory treatment, as well as the application of pre-trial detention. [28] The scope of this law implements criminal sanctions. According to this law criminal sanctions are [29]:

- the main sentences,

- alternative sentences,

- additional penalties and

- judicial observation

It is worth noting that the execution of compulsory rehabilitation measures is carried out in a particular institution in accordance with this law. The provisions of this law apply to the execution of penal sanctions imposed by domestic and foreign courts, in accordance with the Criminal Procedure Code, Juvenile Justice Code, Misdemeanor Law and International Agreements. [30] The purpose of the execution of penal sanctions under this law is the resocialization and reintegration of prisoners into society and their preparation for life. Execution of penal sanctions provides for human treatment, executed impartially, fully respecting the rights of the convicted person, and encouraging the convicted person to re-socialize and re-integrate into society. This law provides for the delivery of convicted persons to a correctional facility as well as their admission, placement, separation, checking, food, activities, health care, visits, as well as the individual program for re-socialization and correction. The resocialisation program includes the establishment in the appropriate sector, participation in educational activities, vocational training, cultural, sports, work, family ties and contact with the outside world, home leave, conditional release, early release as well as measures for ultimate release. [31] According to this Law, the Minister of Justice issues a subordinate legal act - The House Order, which regulates the organization and manner of life of convicted persons. Compared to the previous law on the execution of criminal sanctions, there is a lack of institutional internal rules, which were issued by the Kosovo Correctional Service Directorate, and not by the Minister of Justice. We believe that the Minister should issue Administrative Instructions to supplement and enforce this law, and to issue a House Order. After the law, administrative instructions from the Minister, internal institutional rules from the Kosovo Correctional Service Directorate and institutional household orders should be provided, which should be issued by correctional institutions in accordance with the Law, Administrative Instructions and Internal Rules. This law also foresees the benevolutions of convicted persons, such as visits to the institution and outside the institution, the passage of time in separate premises with the spouse, spouse, vacations outside the correctional facility [32]. Think that vacation at home, annual leave, is not a benign but legal right such as conditional release, early release, forgiveness, and amnesty.

Sub-legal acts for the execution of criminal sanctions in Kosovo

Since the Law on Execution of Penal Sanctions only in principle regulates the competencies, responsibilities, organization and functioning of the Correctional Service, the bylaws (regulations, administrative instructions, internal rules, house orders, etc.) define and complete the legal infrastructure of the Correctional Service Kosovo.

By their number and volume as well as their weight, the normative acts of the Kosovo Correctional Service are quite voluminous. The sensitivity of the work of this service dictates and requires the creation of multiple rules in order to regulate all segments of work in this service.

The required discipline, the internal hierarchy and decision-making, the determination of clear responsibilities of all actors of the Correctional Service, different technical standards, health, the rules of communication with the outside world etc., require full legislative infrastructure.

Administrative Instructions

The Ministry of Justice has issued these administrative instructions referring to the Kosovo Correctional Service:

1. Administrative Instruction for the Admission and Placement of Prisoners in Correctional Facilities

2. Administrative Instruction for the Provision of Medical Services in Correctional Facilities

3. Administrative Instruction on Clothes and Presentation of Uniform Staff of Kosovo Correctional Service Institutions

4. Administrative instruction on the feeding of prisoners in correctional facilities

5. Administrative Instruction on the Calculation of Penalties and Release for Convicted Persons

6. Administrative Instruction on the Visits of Prisoners

7. Internal Rules for the Management of Private Money of Inmates

8. Administrative instruction on working conditions and remuneration for the work of prisoners in correctional facilities

9. Administrative Instruction on Treatment of Prisoners in Correctional Facilities

10. Administrative instruction for resting outside the correctional facility

11. Administrative Instruction for Hygienic Packages and Food Packages

12. Administrative Instruction for Correspondence

13. Administrative instruction on working conditions and compensation in case of inability to work for prisoners.

14. Administrative Instruction on Working Hours for Personnel of the Kosovo Correctional Service

15. Working Hours of Created Correctional Staff

16. Administrative Instruction for the Holiday of Personnel of the Kosovo Correctional Service

17. Administrative Instruction on Disciplinary Procedures

18. Administrative Instruction Personnel Files

19. Administrative Instruction on Disconnection of Relationships for Personnel of the Kosovo Correctional Service

20. Administrative instruction on the evaluation of the performance of works

21. Administrative Instruction on the organizational structure of the Correctional Service of the Republic of Kosovo

22. Administrative Instruction Equal Opportunities Procedures

23. Administrative Instruction Procedures for Settlement of Disputes and Complaints

24. Administrative Instruction on the Probationary Period

25. Administrative Instruction on Recruitment Procedures of Staff

27. Administrative instruction for job descriptions

28. Administrative Instruction on Time Transfers in Special Premises of Correctional Facilities.

29. Administrative Instruction on Official Archive Management in the Kosovo Correctional Service

Internal Regulations

The Kosovo Correctional Service as responsible for creating security and legal functioning of Correctional Institutions has issued these Internal Rules, which include:

Purpose and domination of the rules;

Confidentiality of information;

Dissemination and disclosure of information;

Complaints and dissatisfaction of prisoners;

Media Guidelines;

Feeding prisoners;

Admission of prisoners;

Management of prisoners in the category - high and high volatility;

Escorting the Prisoners Certainly by the Correctional Service Officers;

Use of coercive means;

Release procedures;

Transfer of prisoners;

Number of prisoners;

Death in prison;

Telephone card procedures;

Management of high-risk escape prisoners;

Checking the surrounding security zone;

Control of entrance to prison;

Control of vehicles entering and going to prison;

Control of keys (their function);

Control of tools;

Control - raids (prisoners and visitors);

Disciplinary violations by prisoners;

Violations of the law by the prisoners;

Separation of detainees (sending in solitary confinement);

Separation of minors;

Preventing Security Incidents

Use of force;

Use of firearms;

Firearms Administration;

Visits;

Leave outside the prison;

Provision of medical service;

Conclusion of medical condition and consent for medical treatment;

Refusing food;

Prevention of suicide and self-harm;

Trafficking of prisoners in exceptional cases;

Internal Rules of Work of the Unit for the Transport of Prisoners;

Internal Rules on the Use of Firearms;

Categorization of prisoners;

Treatments-Regime for convictions;

Treatments-Minor Regime;

Treatments-Pre-detention Regime;

Treatments-Regime for female convicts,

Home Order of Detention Centers and Correctional Centers

House Order for Prisoners in Correctional Center for Long Sentences in Dubrava,

Juvenile Home Order at Lipjan Correctional Center,

Order of Home for Pre-detention in 06 Detention Center,

Labor Procedures in the Kosovo Correctional Service

Procedure for granting benefits to convicted and juvenile offenders;

Classification and Reclassification of Convicted Persons;

The concept of prisoner education;

Concept of Employment of Prisoners in Correctional Institutions;

Development of programs for convicts and juveniles;

Staff training at all levels of the Kosovo Correctional Service;

Destination of Correctional Institutions;

Penalty planning for prisoners;

The procedure for detention of prisoners at home;

The procedure for the education and education of juveniles in the Correctional Center in Lipjan;

Rules for Correctional Service Staff:

· Professional Behavior Standards;

· Code of Discipline;

· Personnel Timetable;

· Correctional Staff Uniform;

· Civil Servant Regulations applicable also to KCS.

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[1] Constitution of the republic of kosovo 2008, Prishtina

[2] Criminal Code of Republic of Kosovo, nr.04 / L-082, Pristinc, July 13, 2012 ,. Which law has entered into force on 1 January of the calendar year 2013.

[3] Law on Execution of Penal Sanctions No. 04 / L-149, July 23, 2013 Prishtina

[4] Juvenile Justice Code of the Republic of Kosovo no.03 & L-193Prishtinë, 20 August 2010

[5] Constitution of the Republic of Kosovo, 2008, Prishtina, article 31

[6] Constitution of the Republic of Kosovo, 2008, Prishtinë, Article 31

[7] Law no. 04 & L-149, Prishtina, July 29, 2013, Promulgated with Decree no. DL.035-2013, by the President of the Republic of Kosovo.

[8] Constitution of the republic of kosovo 2008, Prishtina

[9] Criminal Code of Republic of Kosovo, nr.04 / L-082, Prishtinc, July 13, 2012 ,. Which law has entered into force on 1 January of the calendar year 2013.

[10] Law on Execution of Penal Sanctions No. 04 / L-149, July 23, 2013 Prishtina

[11] Juvenile Justice Code of the Republic of Kosovo no.03 & L-193Prishtinë, 20 August 2010

[12] Constitution of the Republic of Kosovo 2008, Pristina, Article 16

[13] Constitution of the Republic of Kosovo, 2008 Prishtina, article 17

[14] Ibid., Article 22, Fundamental Rights and Freedoms

[15] Ibid., Article 25, Right to Life

[16] Ibid., Article 25, paragraph 2

[17] Ibid, article 29, point 1.2

[18] Constitution of the Republic of Kosovo, 2008, Pristina, Article 31

[19] Ibid., Article 33

[20] Constitution of the Republic of Kosovo, Pristina, 2008, Article 34

[21] Therein Article 55

[22] Apology Law No.03 / L-101.12 December 2008

[23] Criminal Code of the Republic of Kosovo, No. 04 & L-082, Pristina, July 13, 2012

[24] Criminal Code of Republic of Kosovo, nr.04 / L-082, Pristina, July 13, 2012 ,. Which law has entered into force on 1 January of the calendar year 2013.

[25] Sahiti, E .; The Criminal Procedure Law, p. 54, was printed at "Rominor" Pristina, 2005

[26] Ibid. F.54

[27] Criminal Procedure Code of Kosovo, no. 04 & L - 123, 13th of December 2012, Prishtina, promulgated by decree no. DL-057-2012, dated 21.12.2012, by the President of the Republic of Kosovo.

[28] Law no. 04 & L-149, Prishtina, July 29, 2013, Promulgated with Decree no. DL.035-2013, by the President of the Republic of Kosovo.

[29] Ibid., Article 2, paragraph 2, p

[30] Ibid, article 3 p.1

[31] Ibid, article 55, p.2 p.15

[32] [32] Article 93 p. 24 Law no. 04 & L-149, Prishtina, July 29, 2013, Promulgated with Decree no. DL.035-2013, by the President of the Republic of Kosovo.