Earlier this year, two judges sued two civil society organizations for defamation. The judges, this time in the role of plaintiffs, argued they should not be criticized for a judgment on a case they had participated in — a judgment the civil society organizations had criticized as sexist. The judgement in question had acquitted five men accused of raping a 19-year-old woman on the basis that the victim was to blame.
Among other reasons, the defendants were acquitted because the victim agreed to travel by taxi with one of the defendants, knowing that he was a man. Therefore, according to the Court, it “logically” was obvious that she had a conflict with her family because of her “wandering around” and “socializing with men.” The Court also found that since the victim was in the apartment with the defendants who were men, “it is understood” that the victim was willing to “enter into sexual adventures.”
This Court’s reasoning is not just sexist. Considering that it was made in the name of the people for the release of five persons accused of rape, it becomes tragic. The Court’s conclusions are rooted in a patriarchal and a judgmental mindset that views a woman’s right to decide about her own body as nonexistent.
A woman’s right to her physical and sexual integrity is not nullified when she travels by taxi with a man, when she spends time with a man or with many men, or when she is in an apartment with men. She is the only one who can make the decision to consent or withhold consent to sexual relations.
While the judgment itself is problematic enough in terms of gender discrimination and requires extensive elaboration, the judges, by suing critical voices, added an additional dimension to the issue: an attempt to restrict freedom of expression.
How did events unfold?
The judgment became known to the public on December 4, 2021 when the TV show “Betimi për Drejtësi” (Oath for Justice) aired an episode produced by the Kosovo Law Institute (KLI) titled “Arsyetimi seksist i vendimit të Gjykatës së Gjilanit” (The sexist reasoning of a judgment from the Court of Gjilan). In the judgment that KLI acquired, the justification for the acquittal of the defendants for rape was, among other arguments, that one of them was married and the others had no intention of “taking the victim as a wife.”
In response, the organization QIKA organized a peaceful protest and symbolic action on December 7 in front of the Kosovo Judicial Council. They covered parts of the building with posters stating: “Sexists have no place in court,” “A visit to an apartment is not permission to rape,” and “In a taxi, in an apartment, in any space and at any time, sex without consent is rape.” During the action, the activists also demanded a disciplinary investigation of the three members of the trial panel.
The show’s publication caused a public outcry and was followed by heavy criticism from the public against the judges’ reasoning. As a result, on January 14, 2022, the president of the Supreme Court, Enver Peci, requested the initiation of disciplinary proceedings against the three members of the trial panel due to the language used in the verdict to acquit the five men.
Two weeks later, at the end of January 2022, judges Ramiz Azizi and Naser Maliqi –– members of the trial panel that had issued the judgment –– sued KLI and QIKA for defamation.
KLI was sued for creating and publishing the show that informed the public about the verdict and that criticized the three members of the trial panel for the judgment. QIKA was sued for protesting at the Kosovo Judicial Council.
The two plaintiff judges described KLI’s criticism and QIKA’s peaceful protest as defamation. According to them, the presiding judge Aziz Shaqiri compiled the judgment in that case while these two were “only” members of the trial panel and thus, cannot be held responsible for the content of the judgment. Despite this, so far, they have not publicly distanced themselves from the reasoning in the judgment.
But what does the law say about the role of trial panel members in issuing a judgment? According to the Code of Criminal Procedure, to make a decision, all three judges withdraw in a closed session for deliberation and voting.
The presiding judge takes care of the “thorough examination of all issues from every point of view” and leads the deliberation and voting, while for the issues raised, the members of the trial panel vote first and the presiding judge is the last to vote. Voting is repeated until a majority vote is reached on each issue. The first issue to be voted on is whether the defendant committed the criminal offense and whether they are criminally liable.
In the present case, the three trial judges individually –– so each one of them –– voted on whether or not the five accused persons had raped the victim. To establish this, they had to examine and decide together on the reasons and the logical course of events that led them to the conclusion that the five defendants were not guilty of rape.
The Code of Criminal Procedure stipulates that when the court rejects the indictment, the reasoning of the judgment focuses on the reasons for rejecting the charge. Ramiz Azizi himself confirmed for KLI that the decision of the three members to release the defendants from the charge was unanimous. Even though the presiding judge does the drafting of the judgment, this does not mean that the other two members are not responsible for its contents.
The three members of the trial panel make decisions together and must be held jointly accountable.
While the other two members did not publicly distance themselves from the content of the verdict, when KLI asked Aziz Shaqiri about the sexist language in the judgment, he said that the language of the judgment “corresponds to the proven reality” and cannot be considered sexist. According to him, the court had “prudently” responded to the victim’s past and her behavior, including her traveling by taxi to Gjilan.
This is a response of a judge that does not have the slightest idea of what consent is and through such decisions, maintains the oppression of women. What is worse is that this response is one of those that confirms the fears of girls and women that if they report violence, they will be faced with prejudice and then blamed and re-traumatized.
Lawsuit to silence criticism
KLI and QIKA have not yet received the defamation lawsuit from the Basic Court in Prishtina, which most likely is the competent court to handle the lawsuit as both organizations are based in Prishtina. The organizations received the news about the lawsuit from the official website of the Basic Court in Gjilan, which issued a statement announcing that judges Ramiz Azizi and Naser Maliqi had filed private defamation lawsuits against them.
This action of the court contradicts the principles of the independent functioning of the judiciary and of the prohibition on commenting on ongoing court proceedings. With the publication of this notice, the Basic Court in Gjilan has taken a stand on a case that is probably ongoing in the Basic Court in Prishtina. But even if the judicial proceedings of the lawsuit had concluded, it is not for the court to inform the public about the private lawsuits of its employees.
The publication of this notice on the official website becomes even more problematic given that one of the plaintiff judges, Ramiz Azizi, is also the president of the Basic Court in Gjilan. That is, he runs this institution and has used his position as court president to advance a completely private interest, creating the public impression that the Basic Court in Gjilan sides with the judges in their lawsuit against civil society organizations.
At a press conference of the Basic Court in Gjilan in early February 2022, Azizi did not answer the activists’ questions about the position of the court regarding the judges’ lawsuit against the activists, instead saying, “See you in court,” and “Yes, I am the head of the house here.”
Meanwhile, the court has not yet published the acquittal, despite its constitutional and legal obligation to do so, and despite the numerous requests for access from QIKA. During the press conference, Azizi briefly answered the question of why they are not allowing access to the judgment, saying that the case involves a victim who is a minor, and also that it is a case of domestic violence and that “those who have published [the acquittal] will also answer for it.” In fact, the victim in this case was not a minor, she was 19 years old, and the charge was not for domestic violence, but for rape.
The judges’ lawsuit against the organizations, together with the announcement published by the court, appears to be a desperate attempt to silence criticism. It also seems like a message to others not to publicly criticize the court decisions, otherwise they will suffer the same outcome as KLI and QIKA. This attempt becomes even more apparent when we consider the fact that the Kosovo Judicial Council has not yet concluded the disciplinary proceedings against the judges for issuing the sexist verdict.
KLI and QIKA have publicly stated that they will not back down from their public engagement and that they are not afraid of the lawsuit.
The work that civil society organizations and the media are doing by informing the public about such decisions as well as demanding accountability from the responsible public officials is essential for the emancipation of society and the eradication of the patriarchal mentality that still dominates in Kosovar society and institutions.
The Albanian dictionary defines the verb “to emancipate” as follows: “to throw off prejudices, useless beliefs, etc. which suppress my thinking and prevent me from developing and acting as a member of a progressive society.” This is exactly what KLI and QIKA are doing.
Feature Image: Atdhe Mulla / K2.0.