In-depth | Justice

No justice for the 15-year-old rape victim

By - 05.11.2021

An overview of the mistakes by the justice system in the process against her rapist.

In late October, Kosovo’s media widely reported the shocking news that the sexual assailant of a 15-year-old girl had been sentenced to only eight months and eight days in prison. The court had imposed a sentence below the minimum set out in the Criminal Code.

It justified this low sentence by finding a number of “exceptionally mitigating” circumstances, which in special cases allow the sentence to be reduced below the level set by law. Meanwhile, it took no aggravating circumstances into account, not even one, that would have imposed a harsher sentence.

Criminal Code

The Criminal Code determines the minimum and maximum sentences for each criminal offense. Rape of a person under the age of 16 is punishable by five to 20 years imprisonment.

The court determines the degree of the sentence within the limits set out by the Criminal Code and takes into account both mitigating and aggravating circumstances.

Mitigating circumstances include: age of the person convicted, admission of guilt, reduced mental capacity, etc.

Aggravating circumstances include: the presence of violence or intimidation during the commission of a criminal offense, the fact that the victim has been particularly defenseless or vulnerable, a higher degree of intent and participation in the commission of the crime, etc.

Due to media pressure, public reaction and demands for accountability from feminist activists and organizations, the responsible institutions launched disciplinary investigations against the prosecutor and the judge of the case. Despite this, the court continues to reject official requests from the media and more than 30 civil society activists seeking access to decisions related to the case. The court is doing this with the pretext of protecting the privacy of minors and the right of the accused to be forgotten, despite the fact that activists had sought to anonymize the decisions and cover up the information that makes the persons identifiable.

K2.0 secured two decisions relating to the case: a judgment by the Court of Appeals from March 2014 and the judgment by the Basic Court in Peja from July 2021. Based on these two documents, here is a summary of the main errors made by the prosecution and the courts during the criminal proceedings against the accused P.K. for sexually abusing a 15-year-old girl.

What happened?

According to the Basic Court in Peja’s judgment of July 2021, in January 2012, a 15-year-old girl was leaving Gjakova’s hospital when two people crossed her path, 21-year-old P.K. and a minor. They violently “took” the girl at knifepoint to an uninhabited house. There, they phoned a third person to join them and raped the 15-year-old-girl “all night.” Early in the morning, she managed to leave the house and report the case to the police. P.K. remained in custody from February to November 2012, a total of eight months and eight days.

In November 2012, the Basic Court in Peja found P.K. and two minors guilty of “group rape” of a person under the age of 16. P.K. was sentenced to two years in prison, while the two minors were each sentenced to one year in prison. (There is an inconsistency between the two decisions available to K2.0: The Court of Appeals’ decision states that P.K. had been sentenced to two years in prison, while the Basic Court in Peja’s decision from 2021 states that P.K. had been sentenced to one year in prison.)

Although P.K. had been found guilty of rape, his detention was not extended and he was released on the day he was found guilty. (It is not clear in either of the decisions whether the prosecution requested the extension of P.K.’s detention after being found guilty of raping a 15-year-old girl.)

P.K. and one of the other defendants appealed the verdict that had found them guilty, taking the case to the Court of Appeals.

It took a full 492 days — or one year, four months and eight days — for the Court of Appeals to reach a decision and annul the 2012 judgment, returning the case to the Basic Court in Peja for retrial. According to the Court of Appeals, the Basic Court in Peja had imposed a sentence of imprisonment below the minimum set out in the Criminal Code for the rape of a person under the age of 16. That is something it could have only done after ascertaining exceptionally mitigating circumstances, which had not been found in the judgment.

After a year, the Basic Court in Peja separated the trial against P.K. from that of the two minors because P.K. had moved abroad.

A total of 2,679 days — that is seven years and four months — passed between the ruling of the Court of Appeals and the retrial that was held at the request of the lawyer of the accused P.K. On July 23, 2021 the Basic Court in Peja again found P.K. guilty of the rape of a 15-year-old.

This time, the court reduced his sentence to just eight months and eight days in prison, exactly the same number of days as the accused had spent in pre-trial detention in 2012, and no further days of imprisonment were added. The prosecution did not appeal.

Mistakes by the prosecution

From the beginning of the process, when the prosecution filed the indictment, it failed to address all criminal aspects of the case. The indictment charged the accused only with rape, completely disregarding their criminal liability for two other offenses: kidnapping and unlawful deprivation of liberty. In addition to raping the victim, the defendants abducted her while threatening her with a knife and kept her in an uninhabited house.

Since the prosecution did not charge the accused with kidnapping and unlawful deprivation of liberty, the least it could do was present these as aggravating circumstances in their rape case. But it failed to do even that.

Then, according to the 2014 Court of Appeals Decision, the prosecution did not appeal the original judgment from 2012; as such it did not request a higher sentence. In fact, it only responded to the appeals of the accused, simply requesting the confirmation of the Basic Court in Peja’s judgment.

The prosecution should have presented as an aggravating circumstance the fact that the accused raped the victim “the whole night,” as admitted by P.K. before the court and as established in the judgment. Additionally, the prosecution should have requested that the fact the victim escaped from captivity the day after the abduction be taken into consideration as an aggravating circumstance. She escaped, she was not released.

Despite all these facts, during the main trial in July this year, the prosecution asked the court to take into consideration only mitigating circumstances, most of which should not be taken into account at all when sentencing.

The prosecution brought forward the fact that 10 years have passed since the criminal offense was committed as a mitigating circumstance. The Supreme Court states in its Sentencing Guidelines that courts should be very careful in acknowledging this mitigating circumstance and approach it with skepticism.

According to the Supreme Court, courts “should not give it any consideration at all” whenever the accused themself caused the delays. According to the judgment of the Court of Appeals, the Basic Court in Peja decided to separate the process against P.K. from the case of two other minors because P.K. had moved abroad. From this it can be understood that P.K. himself contributed to the delay of the trial, in which case the prosecution should not have asked the court to take the lengthy time of the trial as a mitigating circumstance nor should the court have accepted it as a reason to lower the sentence.

How is it possible that for the Prosecution the absence of injury during the rape is more important than the death threat, kidnapping and unlawful deprivation of liberty of a 15-year-old girl?

The prosecution also requested consideration of the fact that P.K. was friends with two persons who were minors as a mitigating circumstance, saying that “these circumstances speak of his psychological maturity at the time of committing the crime.” The prosecution cannot, should not and has no competence to assess the psychological development of an accused person. This competence belongs to psychology and psychiatry experts, who must be engaged in the trial in accordance with the Criminal Procedure Code. The engagement of such an expert is not mentioned in either of the two decisions that K2.0 possesses.

The prosecution requested that the court consider as an additional mitigating circumstance the fact that the victim stated to police and prosecution that she had no injuries — the absence of physical injuries in cases of rape cannot be and is not a mitigating circumstance. Rape is the absence of consent for a sexual act, not injury during a sexual act without consent. How is it possible that, for the prosecution, the absence of injury during the rape is more important than the death threat, kidnapping and unlawful deprivation of liberty of a 15-year-old girl?

Moreover, according to the judgment, in some cases where the requests of the prosecution are cited, the rape is referred to as “sexual intercourse.” There is no “sexual intercourse” when there is no consent. A sexual act without consent must always be called rape; anything else relativizes the severity of this crime.

The prosecution further requested the fact that “the forensic medical examination does not appear in the case file” be taken as a mitigating circumstance but it is the prosecution that has the authority to decide upon the forensic medical examination of victims.

In criminal proceedings, the prosecution represents the public interest before the court and has a duty to consider the inculpatory and exculpatory evidence. It is clear that, in this case, the inculpatory evidence against the accused P.K. were not addressed at all.

Mistakes by the court

Independently from the requests of the prosecution, it is the court that evaluates the criminal liability of the accused and decides on the sentence. According to the Criminal Code, the court must base its judgments on the facts and evidence that appear in the trial and is obliged to assess them conscientiously.

Determining a sentence

The Criminal Code provides, for each criminal offense, the minimum and maximum possible punishment, so that the circumstances and peculiarities of each case are taken into account in the sentencing process.

The court sets out a sentence within the defined limits taking into consideration the circumstances of the offense, the motive, the degree of criminal liability and the personal circumstances of the perpetrator, so that any punishment is proportionate to both the crime and the behavior and circumstances of the perpetrator.

In the judgment’s reasoning, with the eight months and eight days sentence, the Basic Court in Peja did not find any aggravating circumstances. Not one. This is despite the fact that, in its own judgment, the court finds that the accused pleaded guilty to: threatening the victim with a knife and abducting her, keeping the victim in an uninhabited house overnight, raping her “during the whole night” in co-perpetration with two other persons and the fact that the victim escaped from the house where she was being held, meaning did not release her. The court decided to ignore all these factual circumstances that make the criminal liability of the accused more serious and instead only established the “mitigating circumstances.”

One of the biggest mistakes by the court in its sentencing is finding that the accused is criminally liable and that he committed rape intentionally while at the same time establishing that he is “psychologically immature.”

According to the Criminal Code, to be criminally liable means being mentally capable, while committing a criminal offense intentionally means being aware of the act one is commiting and wanting to commit it. Thus, the court on the one hand finds that P.K. was mentally capable to understand that he both wanted to and did rape a 15-year-old girl, while on the other hand finds that he was “psychologically immature” because he was friends with two minors at the time of the crime.

This makes the reasoning of the judgment illogical and contradictory. In order to judge the psychological development of the accused, the Court should have invited experts to assess his psychological development, as prescribed by the Criminal Procedure Code, and not evaluate it based on assumptions and cultural prejudices.

Similarly to the prosecution, the Basic Court in Peja refers in some cases to the rape as “sexual intercourse” instead of rape and considers the absence of injury to the victim a mitigating circumstance. Again: Rape is the commission of a sexual act without consent and is not related to bodily injuries, while the phrase “sexual intercourse” means the mutual consent of two adults to a sexual act. Rape cannot be called “sexual intercourse.”

When elaborating on the reasons for imposing a sentence below the legal minimum, the court notes that the victim and the representative of the Center for Social Work did not attend the trial process, implying that their absence is a pretext not to issue a harsher sentence.

According to the Criminal Procedure Code, the victim has the right to participate in the trial, but their presence is not necessary for the trial to be held. The absence of the victim in the trial does not minimize the significance of the fact that she was harmed by the criminal offense and that her bodily and sexual integrity were violated. It certainly does not release the court from the obligation to impose a sentence that is proportionate to the damage caused to the victim.

The court considered as a mitigating circumstance the correct behavior of the accused during the initial hearing. Correct and orderly behavior is something that is expected from every person that interacts with the court. Those who disobey the court during trial may face fines for obstruction, while defendants who do not respond to a court summons for a hearing are brought to trial by force. The Supreme Court states in its Sentencing Guidelines that cooperation with the court may be a mitigating circumstance only when accounting for “activities that go beyond the expected or appropriate conduct in general.”

The court established that the accused pleaded guilty “at all stages” of the proceedings and noted it as a mitigating circumstance and a reason to issue the sentence below the legal minimum. However, according to the Court of Appeals, in the appeal against the original judgment that found him guilty of rape, P.K. requested that he be acquitted of the indictment’s charges in the absence of evidence. This casts doubts over the Basic Court’s finding that the accused pleaded guilty “at all stages of the proceedings.”

The sentence of eight months and eight days imprisonment is not only significantly disproportionate to the crime, it is also illegal.

The Supreme Court’s Sentencing Guidelines also state that in order for a guilty plea to be considered a mitigating circumstance, its timing is crucial for example, it can be considered as such if it is made at the beginning of the trial. However, if the accused pleads guilty in the middle or at the end of the trial, then the court may reduce the sentence slightly or not at all. Consequently, the guilty plea by P.K. in the retrial should not have been taken as a particularly mitigating circumstance.

The sentence of eight months and eight days imprisonment is not only significantly disproportionate to the crime against a 15-year-old girl, it is also unlawful. The minimum sentence for the rape of a 15-year-old is five years imprisonment. According to the Provisional Criminal Code, which was applicable when the crime was committed, the lowest sentence below this threshold in cases where mitigating circumstances apply is one year imprisonment. Hence, eight months and eight days of imprisonment falls well below the legal minimum, even in cases of sentence mitigation.

Even a sentence of one year imprisonment would not be reasonable in this case, as most of the exceptionally mitigating circumstances recognized by the court are baseless.

What does all of this mean?

In criminal proceedings, courts pass judgments in the name of the people, so any decision to convict or acquit a person begins with “In the name of the people.”

The purpose of punishment, according to the Criminal Code, is to compensate the victim for the damage caused by the offense, strengthen the obligation to respect the law, prevent the perpetrator from committing criminal offenses in the future and ensure the rehabilitation of the perpetrator. Punishment is also intended to serve as a deterrent to prevent other persons from committing criminal offenses in the future.

In the case of the rape of the 15-year-old, the court found, in the name of the people, that the sentence of eight months and eight days is “in accordance with the degree of criminal liability of the accused and the intensity of endangering the protected values of society.” What is more, the court emphasized that it is convinced that this sentence will prevent others from committing criminal offenses in the future.

It remains unclear how the court considers that this sentence will prevent others from committing such crimes, not only because it is low and disproportionate to the crime committed, but also because the court is hiding the decision from the public by refusing to grant access to it. In fact, the message of this trial and this low sentence is this:

For potential rapists: Even if you threaten someone with a knife, even if you kidnap them, even if you hold them captive, even if you rape them all night and even if that person is underage, on the day you are found guilty you will be released from prison. About 10 years will pass, and when the trial is held for the second time, you will be punished only for a small part of your criminal liability, not for all the criminal acts you committed. And on top of all that, you will be sentenced below the absolute minimum requirement.

For girls and women: Even if you report rape, kidnapping and unlawful deprivation of liberty to the police and prosecution, the trial will end 10 years later, when you will probably not have the slightest motivation to go to court. And this will be taken as one of the reasons to impose a punishment to your rapist below the lowest possible minimum.

According to a news article published in recent days (November 3, 2021), the Basic Court in Prishtina sentenced a repeat rape offender to only 18 months in prison and took into account some mitigating circumstances similar to those in this case. These are just two cases that have surfaced recently, pointing to the possibility of a systematic problem in how courts deal with rapists. If it were not for the media coverage and civil society engagement, the case of the 15-year-old girl and the violation of her dignity by the unjust favoring of her rapist would have passed by unnoticed. 

This case reaffirms the importance of the role of the media and civic mobilization in increasing the accountability of the justice system to the public and the need to improve the institutional approach to bringing the perpetrators of crimes against women and girls to justice.

The demands for the case’s prosecutor and judge to be held accountable should serve as a reminder to all public officials that the law applies to them as well.

Feature Image: K2.0