In times of social mayhem, the state is protected from chaos by police, judges, prosecutors, teachers. They believe in, and live by, respecting work ethic and professional honor. Such things were also expected of Sali Mekaj, head of the Court of Appeals, one of the most important positions in the Kosovo judiciary.

But in 2015 Sali Mekaj was implicated in a relationship with V.G., the wife of a prisoner, with whom, according to charges set out by the Special Prosecution of Kosovo, published previously in different media, he was suspected of having negotiated a bribe worth 20,000 euros for the release of V.G.’s husband, who was in custody for inciting murder and attempted murder.

Mekaj was arrested in his office on July 20, 2015, and is accused by the Special Prosecution of misuse of official position or authority, whereas V.G. is accused of inciting a criminal act.

On October 20, 2016, Judge Shashivar Hoti of the Basic Court of Prishtina, with the approval of Special Prosecutor Drita Hajdari, who is prosecuting Mekaj and V.G., decided, to close the case to the media. The decision — a copy of which has been obtained by K2.0 — was made on the basis of a legal request made by V.G.’s defense lawyer, Besnik Berisha, that called for the session to be closed so as to protect his client’s personal life.

The ruling includes a mandatory order to exclude the public and media from the judicial hearing, and prevents the publication “of the ruling or parts of it, and of wiretap and telephone call transcripts.” However, despite the legal principle that rulings should be sent to those who are obliged to respect them, this decision was never sent to media organizations and was not published on the Court’s official web page.

In the ruling’s reasoning, it is written that “publication of personal data could result in consequences for the defendant and his family members.” According to Kosovo’s Law on the Protection of Personal Data, the term ‘personal data’ covers “any information” relating to a “a person that can be identified directly or indirectly, especially based on an identification number or one or more unique physical, psychological, mental, economic, cultural or social factors of identification.”

The ruling has drawn strong condemnation from the media and some legal experts, for its apparent disregard for public interest — in this case, being informed about an alleged act of misuse of official position committed by a state official — which according to Kosovo’s Constitution, should prevail over personal interest or the reputation of the accused.

The decision made by the Basic Court of Prishtina is based on Article 294, Paragraph 1 of the Kosovo Criminal Procedure Code, which allows the exclusion of the public so as to preserve the defendant’s personal life in judicial hearings and other procedures. However, the decision to close off the hearing from the public eye came after the Mekaj case had already been reported on in detail by the Kosovar media.

Personal vs. public interest

Despite Kosovo’s Constitution asserting that public interest prevails over personal interest,  the Mekaj case isn’t the first time that the judiciary in Kosovo has attempted to close off important judicial hearings from the media — although the previous two attempts failed.

In the Toka case in 2016, PDK deputy Azem Sylaj was the main defendant, as the alleged leader of a group of 39 people accused of committing crimes related to public properties. Members of this group were accused of crimes including organized crime, money laundering, bribery, heavy fraud, fraud while on duty, issuing of illegal judicial rulings, misuse of official position, legalization of falsified content and fiscal evasion. According to Kosovo’s Special Prosecution, this case revolves around an organized criminal group — active since 2006 and comprised of Albanians and Serbs from Kosovo — that has an organized hierarchy and has deprived Kosovo of social properties.

EULEX Judge, Arcadius Sedek, initially made the decision to close off the hearing at the request of defense lawyers, sparking public criticism from the media and other sections of civil society. Sedek subsequently changed his decision, stating: “I have opened the hearing for media because I am aware that it is important for the media, and that the result interests them.”

The Kosovo Journalists’ Association (AGK) and other civil society organizations had stated that closing off judicial hearings to the media by the judicial system was directly affecting the transparency of the judiciary. “With these acts, courts have set a precedent for hiding suspected criminal acts by senior officials from the public,” read an AGK reaction to the initial decision to close the trial to media.

Another case in which attempts were made to exclude the media’s presence also occurred in 2016. The Stent case, in which 100 doctors, including the former minister of health, Ferid Agani, were accused of misuse of power and corruption, related to coronary stents at the University Clinical Centre of Kosovo (UCCK). However, this case was also affected by the reaction of AGK, which forced judges to overturn their initial decision to close the case to media.

In a memorandum issued by the European Commissioner for Human Rights, Nils Muiznieks, late last year, it was noted that “justice, social cohesion and media freedom remain great challenges in Kosovo.” In point 50 of his memorandum, the commissioner expressed his concerns because “certain cases of high public interest court hearings have been held in camera [in private] even though there seemed to be no reason for this to happen.”

AGK’s concern over the closing off of judicial hearings was also supported by the European Federation of Journalists (EFJ). In December 2016 EFJ publicly supported the request of journalists for holding judicial processes open to the public and journalists, reminding the judicial system that the basic principle of court work is transparency.

As far as the closing off of Sali Mekaj’s hearing goes, AGK spoke out once again. In January, it stated that after reactions to the closing off of the session, it expected a change of decision and an opening of sessions, based on Mekaj’s position and the public interest to report about accusations of misuse of official position and authority set out against him.

“The judge’s justification, that sessions have been completely closed off so as to preserve the personal life of the accused, the damaged or the involved, does not hold,” it said in a statement. “We demand that this case be reopened to the public. The closing of certain sessions could be acceptable, but not the whole judicial process.”

AGK accused the judicial system of ignoring its request to change the decision and to re-open the session. In late 2016, it had written to the Kosovo Judicial Council (KJC). However, this institution did not express its opinion regarding the closing off of judicial processes. Referring to its mandate, KJC stated that any steps taken in these cases remain solely within the responsibility of judges.

“Despite this, we consider that the KJC should have an active role as this institution is partly responsible for the failure or success of the judicial system. We publicly demand that KJC express an opinion regarding this case,” the AGK statement continued.

KJC has not released a statement in this regard to date, and the Court’s decision has not been reversed.

Moreover, in an answer given to K2.0 by the spokesperson of the Basic Court of Prishtina, Mirlinda Gashi, it was implied that the Court does not plan to open the Mekaj trial sessions to the public. “Regarding the request you made, we inform you that the decision taken by the judge that handles the case involving the accused S.M. is still in force,” she said.

AGK has also condemned the decision by the case special prosecutor, Drita Hajdari to agree to the request to close the session, despite the fact that she is presenting the charges against Mekaj.

But when asked about the reasons for her consent to close the session against Mekaj, Hajdari told K2.0 that her decision was in order to protect the private life of V.G., whose name she did not mention.

“Within public opinion it is usually perceived that the prosecutor must work only against the defense, but the law obliges us to also act for the benefit of the defense, and in this case, with great difficulty, I agreed to close off the session, and not because of Sali Mekaj,” Hajdari told K2.0. “I agreed because in Sali Mekaj’s case, we also have an accused woman that has two children and is married, and the potential publication of certain data related to the case has been estimated to damage her personal life and that of her children and her family members.

“We are talking about her personal life…,”  she continued, “This opportunity to defend personal life is foreseen within the Criminal Procedure Code, but also within the European Convention of Human Rights [Article 8]; and when something is foreseen by laws and conventions, then it is legal, and for such cases it must be functionalized,” she explained.

According to lawyer Kushtrim Palushi, who in his professional career has dealt with multiple cases regarding the protection of personal information, the Court’s decision is senseless and to the detriment of public interest.

Palushi explained that courts have the right to close off judicial hearings from the public and media when the protection of private lives and the families of parties within procedures is in question, and that courts can completely or partly close off judicial hearings.

However, in any circumstance, the court must justify its decision, and within this justification, an analysis must be made and a balance be kept with the right of parties to privacy and protection of family life. “In this case, the public has a right to know, and be informed about, a hearing that is of public interest, because it revolves around the former head of Kosovo’s Court of Appeals,” he explained.

In this instance, the alleged relations with V.G. are central to the Prosecution’s case against Sali Mekaj and reporting this information is essential to explaining the misuse of power allegations against the state official.

Palushi suggests that allowing some reporting on the case does not necessarily need to threaten V.G.’s personal life, and that because of Sali Mekaj’s public position and the criminal act for which he is accused, the complete closing off of the judicial hearing should not have happened. The lawyer asserts that the court could have easily decided not to publish certain parts of the session or information that is considered to damage personal life, but that there is no justification for closing off the hearing completely.

“It is possible to achieve the same effect, namely the protection of private life and families, through the partial closing off of the judicial session, limited only to conversations or evidence that is considered to breach the former,” he told K2.0. “Moreover, the court does not justify how public involvement breaches the right to privacy and family life of parties, and does not provide an analysis of the content of the [sensitive] evidence.

“Secondly, and more importantly, the Court does not justify or balance between the right of parties for the protection of privacy and the right of the public to know or be informed,” he added. “The Court has an obligation to balance the two because, as a rule, a hearing is public because of the existence of a public right and interest to know and be informed about hearings that are held in the name of the public.”

Palushi believes that in the Mekaj case, the Court was obliged to conduct this balance based on judicial practice and standards set out by the European Court of Human Rights (ECHR), which are embedded in Kosovo law through Article 53 of the Constitution.

“ECHR standards, that speak about the freedom of expression and its limitations, highlight that these limitations, besides needing to be foreseen by law, must also have a legitimate aim that is necessary in a democratic society,” Palushi said.

A decision to partly close off the hearing, he suggests, could have been made in accordance with ECHR standards, because such a decision would obtain a balance between the right to privacy and protection of family life, and the public right and interest to know and to be informed about a public hearing.

In the context of the right to be informed, Palushi considers that completely closing off the hearing deprives the public of this right, which he asserts is recognized and guaranteed by relevant freedom of expression legislation; both Article 10 of the European Convention of Human Rights and Article 40 of Kosovo’s Constitution.

But despite all the arguments made by media and legal experts, the decision to close a high profile criminal case based on personal interest over public interest remains in force; and it seemingly paves the way for future obstruction of the media in cases that include senior state officials and politicians.K

This article is a response to reader questions during our #IWantToKnow campaign on the reasons behind the closure to the media and publid of the trial of Sali mekaj, head of the Court of Appeals.. The#IWantToKnow campaign has been supported by the Embassy of the Netherlands in Kosovo.

Feature image: Atdhe Mulla / K2.0.