Perspectives | Justice

To prevent future Astrit Dehari cases, we must change the system by using it

By - 11.11.2016

Instead of heading toward collective efficacy, Kosovo is going in the opposite direction.

We are all prisoners but some of us
are in cells with windows
and some without.
― Kahlil Gibran

Astrit Dehari passed away under unclear circumstances on Saturday, while being held in pre-trial detention at Prizren Detention Center. Not having had a final explanation from the state authorities yet — and not being entirely certain about all of the details of the case — I will aim to stay away from speculating about the specifics; I will instead focus on the pattern that I consider to have enabled the deceased to end up like he did and offer insight into why no matter what happened in that cell, the state ought to be held responsible.

Given that the emotional angle and the analytical one have already been covered by others, I will focus on three different, but very important issues and will look at this case mainly from a legal perspective.

Misuse of pre-trial detention

Firstly, the way in which pre-trial detention works in Kosovo is sometimes unbelievable. Most prosecutors routinely ask for pre-trial detention as a first measure, despite the fact that — in Article 173 — the Criminal Procedure Code of Kosovo is extremely clear on when pre-trial detention ought to be requested. The Code states: “In deciding which measure [of ensuring the presence of a defendant] to apply, the court shall be obliged to take account of the conditions specified for the individual measures and to ensure that it does not apply a more severe measure if a less severe measure would suffice.”

It seems that very often the main aim of the justice system is not to actually serve justice but to blame people and fill the cells with them.

The Code sets out that pre-trial detention may be ordered within 48 hours of the arrest, and only after a hearing in the presence of the defendant and defence counsel, while a reading of it provides a three-part test that should be applied: firstly, there must be a grounded suspicion that the person has committed a criminal offence; second, there must be a risk that the suspected person will flee, his or her identity cannot be established, that they will destroy or forge evidence, or influence witnesses or injured parties or accomplices, or that they will repeat the criminal offence; and thirdly, the alternative non-custodial measures provided in the code must be deemed insufficient to ensure the presence of the accused, the successful conduct of the proceedings and to prevent re-offending.

Furthermore the rulings on detention must contain detailed reasoning as to why deprivation of liberty is necessary in the specific circumstances of the case, and the law also incorporates the “no longer than necessary” principle, by prescribing that “any deprivation of liberty and in particular detention on remand in criminal proceedings shall be reduced to the shortest time possible.” All these safeguards contained in the legal framework of Kosovo reflect internationally recognized standards on an individual’s right to liberty and security, yet are very rarely used properly.

The main problem here is that given the political circumstances — read: political influence — it seems that very often the main aim of the justice system is not to actually serve justice but to blame people and fill the cells with them. History has proven that that has never worked and that the ultimate aim is to help people re-integrate, not strip them from any hope that they might ever get out, let alone re-integrate into society.

This attitude is a contradiction not only of the Criminal Procedural Code of Kosovo but also of the European Convention on Human Rights and its case law. Given the legal context in which the instrument of pre-trial detention is placed under the European Convention on Human Rights — to the case law of which Kosovo is obliged to adhere to by Article 53 of the Constitution — the right to liberty is a core human right and its respect a key prerequisite of the rule of law; any interference with the right to liberty must be in strict conformity with the limitative list of permissible restrictions in Article 5 of the Convention.

Furthermore, persons held in pre-trial detention are presumed innocent and have the right to be treated as such, while the use or abuse of pre-trial detention has a strong impact on the fairness of the trial, which is guaranteed by Article 6 of the Convention. None of these rights happen often in Kosovo.

It is not like this issue has not been addressed in the past; it is very sad that someone had to die for the issue to re-emerge. The fact is that in 2013 a strategic case, supported by The Public International Law & Policy Group (PILPG) through the “Justice and the People Campaign,” was sent to the Constitutional Court specifically regarding this very matter of misusing pre-trial detention. The case was about a Kosovo citizen who had been held in prison for nearly four years without a trial.

Against all odds, and all the facts and arguments laid out in the case, the Constitutional Court decided to ignore the possibility of ‘educating’ the courts on how to use pre-trial detention and impose a ridiculous standard of ignoring the massive misuse of pre-trial detention.

Developing a system that works

My second point is that it should be clear that responsibility matters. Someone should take responsibility for what happened and for how the case has been addressed. The case is still in the process of being solved so we should be patient. But once the dissemination of the facts is over, officials who misinformed the public about the cause of death ought to be held responsible.

The monitoring and organizational system of Kosovo’s Correctional Service leaves room for improvement in general. Remember the case of the detainee in Prizren who basically built his own cell? The case of the mayor running the city from his cell? These go to show that our system creates opportunities for the powerful to maintain their power no matter where they are — be it in the office, in prison, hospital or even just the street.

The system is on the path of creating a pattern of collective inefficacy — the opposite of what a developing country ought to aim for. Efforts to promote collective efficacy try to close the gap between the generations, build social resources that promote reciprocal exchange between members of the community and encourage informal social controls. While in our case, the system is moving in the opposite direction by generating a larger gap between not only generations but also classes, by discouraging informal social controls and promoting the “benefits of the powerful.”

Responsible media

Last but not least — it is incredibly important to assess the impact of media in this whole matter given that they have been incredibly active in the case of Astrit Dehari’s death. Last night certain CCTV footage from the Prizren Detention Center was published online by almost all Kosovar media (note: almost all — there have been some media outlets that did not show it). While it is important to be transparent, it is also very important to acknowledge the framework of law within which we function on a daily basis.

At this point we do not know whether the CCTV footage was leaked to the media by unknown sources or was given to the media by the prosecution. In both cases responsibility arises and should be noted.

The Criminal Procedure Code is clear when it says that during the investigation stage of cases — all records, reports, recordings, transcripts, evidence, orders, decisions, requests, appeals, judgments or other documents relevant and important to the criminal proceeding shall be maintained in a case file; only the Kosovo Prosecutorial Council and Kosovo Judicial Council are empowered to set rules on the internal handling of the case file within the prosecutors’ offices and the courts, respectively. The Code refers only to the internal handling of the case file, which means that only once the investigation procedure is over can the evidence be shared with the public where necessary.

At this point we do not know whether the CCTV footage was leaked to the media by unknown sources or was given to the media by the prosecution. In both cases responsibility arises and should be noted. In the first scenario against the media outlet that first published (but also all those that subsequently re-published it), and in the second against the prosecutor’s office.

The damage that can be done when a whole population turns into independent judges and prosecutors during the investigation phase is much greater than the benefit that can come out of publishing that footage. That is why media should be much more careful in these matters and, for once, leave aside the eternal need for exclusivity and clicks.

Time to drive change

A lot has been written about the case of Astrit Dehari over the past days and prominent amongst these writings is the voice of despair of people giving up on their country. If we let these voices lead us, we will be doing what the system wants us to do: give up.

But remember — we can love our country, while not being particularly excited about our government. So with that being said, it is time we consider some options for solutions that can have a greater impact in the long run. Of course, nothing will bring Astrit back and nothing in this world can help to ease the pain of his family. We can do nothing at all about that. But what we can do is to help prevent other “Astrit cases.”

In order to do that there are different legal remedies and they should be followed. It is very difficult to have trust in this system — I understand. But this system is all that we have and we need to challenge it if we want to improve it.

It is about adjusting to your surroundings and finding the right thing to do with the tools that you have at a particular moment in time, until you reach the point of adjusting your surroundings to what is right.

One such measure is by filing a claim to the Constitutional Court based on the illusory concept of ‘exhaustion of remedies’: In these cases where claims call upon illusory remedies, the legal remedy cannot in actuality be fulfilled — no court decision can bring Astrit back — so the standard chain of going through the Basic Court, Appeals Court, Supreme Court, etc. can be bypassed. Eligible subjects may file a request to the Constitutional Court on the grounds of the state violating Astrit’s right to life (article 25 of the Constitution of Kosovo).

After the verdict there are other steps to be followed. None would bring the deceased back but they would help to improve the system, preventing similar cases from occurring again and educating the system on how to deal with them in case they do.

This was the process used in the case of Diana Kastrati, who was shot dead by her ex-husband in 2011 despite having requested an emergency restraining order from a judge three weeks before her death. Her parents were unable to bring her back, but because of the case they brought, there has been a substantial change in the way in which cases involving domestic violence are approached by the system; their loss helped to soothe the pain of other potential losses. And while that is almost nothing, it is what we can hope to get in a society like ours that functions abnormally. We should start improving the system by using it, as difficult as it may seem.

Notwithstanding the fact that Astrit’s death is a tragic event and it should be treated as such, it is my submission that if we treat this case strategically and try to have a greater impact in the long term, we might just be on the right track. But we must learn three very important lessons: The concept and usage of pre-trial detention should be re-visited, legal remedies should be sought to address those responsible for mishandling Astrit’s case, and media should re-visit their notions of professionalism and abidance to the law.

At the end of the day it is not theory or legal concepts that matter. It is about adjusting to your surroundings and finding the right thing to do with the tools that you have at a particular moment in time, until you reach the point of adjusting your surroundings to what is right. That is when we know we have succeeded in changing the system by using it.

Feature image: Majlinda Hoxha / K2.0.