In-depth | Specialist Chambers

Unconstitutional rules at the Specialist Chambers

By - 08.05.2017

Why the rules on procedure and evidence were returned for revision.

Even before the Specialist Chambers and Special Prosecutor’s Office had been formed, they were already causing heated debate throughout the legal system. By this point, it seems as though this type of furore will be a feature that will continue surrounding the Specialist Chambers and Special Prosecutor’s Office for quite some time.

The latest controversy surrounds the most recent development; certain rules and regulations on procedure being found unconstitutional by the Constitutional Court, leading to the entire set of rules being referred back to the Special Prosecution team for revising.

In March this year, the Plenary of the Judges of the Specialist Chambers adopted the Rules of Procedure and Evidence. Later that same month, these rules were referred to the Constitutional Court for approval, all part of due procedure. However, there has been a hiccup in proceedings, the Court found that out of the entirety of the rules submitted (of which there were 208 in total), 10 were inconsistent with Chapter 2 of the Constitution of the Republic of Kosovo on fundamental rights and freedoms.

It is important to note at this point that the Constitutional Court does not hold a rule to be in contravention to the Constitution unless the unconstitutionality of a provision is clear. This means that even though there were certain clarifications required for other rules as well, 10 of them were found to be entirely inconsistent with the Constitution.

The Court unanimously found seven rules to be inconsistent with the Constitution, while two more were found unconstitutional by the majority of judges and one was unable to be declared either consistent with the Constitution or not. The majority of the inconsistent rules relate to the rights of persons during the investigation, with the rest focussing on the organization and administration of the Specialist Chambers and general provisions.

To help understand the issue, we will cut it down into smaller pieces and address the rules that have been found inconsistent with the Constitution.

The inconsistent rules

Rule 19 (3): Absence of a Judge

Paragraph 3 of this rule raises the issue of whether the continuation of proceedings before two judges from the Specialist Chambers’ panel would constitute a hearing in front of ‘a tribunal established by law’ (which is guaranteed under the Constitution of Kosovo). Three judges are normally required to provide an odd number of judges and no even splits.

The Constitutional Court has found that the continuation of a hearing before two judges from a panel has no basis in law, and therefore is inconsistent with the Constitution.

Given the magnitude of interference that secret surveillance has on the right to privacy, the Court has endorsed the view of the European Convention of Human Rights.

Rules 31, 32 and 33: Special Investigative Measures

These rules distinguish between different types of special investigative measures. However, the rules are lacking some key elements. They do not define the categories of persons in respect to whom the special investigative measures may be applied to, or the degree of interference with a person’s right to privacy.

These three rules also permit the interception of telecommunications and other forms of invasive surveillance with respect to any person, as long as certain conditions are met. But they lack sufficient precision in terms of the duration of intercepted communications.

Given the magnitude of interference that secret surveillance has on the right to privacy, the Court has endorsed the view of the European Convention of Human Rights (ECHR) that states that any law on covert interception and surveillance measures must contain certain minimum safeguards such as: specifying the nature of the offences that may give rise to an interception, limiting the duration of telephone tapping, defining the categories of people liable to have their telephones tapped, and specifying when recordings must be erased or destroyed.

The Constitutional Court has found in this case that Rules 31, 32 and 33 do not comply with the Constitution because they lack adequate safeguards against abuse of power in the field of special investigative measures and, particularly, with regards to the interception of communications.

The rules also do not meet the ‘quality of law’ requirement under Article 55.1 of the Constitution, and cannot demonstrate that the permitted ‘interference’ is kept to what is ‘necessary’ in a democratic society.

Rule 35 (1) (b) and (c) and Rule 35 (3): Search and Seizure by the Specialist Prosecutor

Paragraph 1, sub-points (b) and (c) of this rule on searches and seizures also impact on the right to personal integrity and the right to privacy, as guaranteed by both the Constitution and the ECHR.

Here, the Constitutional Court notes that any interference with the fundamental rights and freedoms resulting from searches and seizures must be out of ‘necessity.’ According to the Court, ‘necessity’ implies that the specific limitation of the rights in question correspond to a pressing social need and are proportionate to the legitimate aim pursued.

However, Rule 35 (1) (b) stipulates that the Specialist Prosecutor can search ‘any’ property on which a person caught in the act of committing a crime is arrested after a pursuit. Sub-point (c) of the same Rule meanwhile allows the Special Prosecutor to search ‘any’ person and to seize ‘any’ items if a person against whom an arrest warrant has been issued is on the property being searched.

The Constitutional Court has raised the issue of compliance of this Rule with Article 36.2 of the Constitution, which states that authorities can conduct searches only ‘to the extent necessary’ and where they are ‘deemed necessary for the investigation of a crime.’ As such, the Court has found that these broad powers given to the Special Prosecutor do not meet the ‘necessity’ requirement outlined in the Constitution.

Rule 35 (3) on the other hand foresees that: ‘The Panel shall approve the search and seizure only if satisfied that the conditions under paragraph (1) were met. If an approval is denied the Specialist Prosecutor shall immediately terminate the search and seizure.’

The Court has also found this part of the rule inconsistent with the same constitutional articles stipulated above — given the post facto (after the fact) judicial review nature of the process. In layman’s terms, the Court has held that it makes little sense for the Specialist Prosecutor to start the search and then have it terminated if the Panel disapproves it.

The Court stipulated that this Rule is not formulated with the requisite degree of precision.

Rule 36 (1) and (2): Execution of Search and Seizure

Rule 36 (1) (a) foresees that the Specialist Prosecutor shall provide the affected person with ‘a certified copy’ of the decision prior to the execution of an operation, while Rule 36 (2) allows for these rules not to apply in exceptional circumstances.  

The Constitutional Court has expressed its uncertainty over what type of searches are covered by which paragraph in Rule 36, more specifically over whether Paragraph (1) is intended to cover only judicially authorized searches and Paragraph (2) is intended to provide for non-judicially authorized operations. Because of this uncertainty, the Court has maintained that even if Rule 36 (2) is to be interpreted as applying to non-judicially authorized searches and seizures, this would mean that in ‘exceptional circumstances’ the Specialist Prosecutor would be relieved of the duty to ‘inform the person of his or her rights’ since that obligation is contained in Paragraph (1) (b).

The Constitutional Court believed that, regardless of whether a search or seizure is conducted with or without prior judicial authorization, a person who is the subject thereof should, in principle, be informed of his or her rights. That is why the Court stipulated that this Rule is not formulated with the requisite degree of precision and these provisions therefore do not comply with the quality of law requirement stated in the Constitution of Kosovo.

Rule 38 (1) and (5): Expert Examinations

Rule 38 is another that could be seen as contravening the right to personal integrity and the right to privacy outlined in Articles 26 and 36 of the Constitution, and Article 8 of the ECHR.

Rule 38 (1) permits the Specialist Prosecutor to order the collection of hair, saliva and other swab samples, which can be undertaken without bodily intrusion, without first seeking authorisation from a Panel. Rule 38 (5) on the other hand, mentions the retention of all materials, including cellular samples collected without any particular assessment of the specific circumstances arising in each case.

However, Rule 38 contains no specifications as to the categories of persons to whom the physical examinations may be ordered, nor does it provide safeguards to ensure that the materials collected are not retained for longer than is necessary. For example, the material may be retained irrespective of the nature or the gravity of the offence with which an individual was originally suspected, and whether or not the individual concerned is a suspect, an acquitted individual, or a third person.

The Constitutional Court considered that the absence of adequate safeguards for the conduct of non-consensual expert examinations, and for the retention of materials obtained, fails to strike a fair balance between the competing public and private interests at stake, in contravention of the Constitution.

The Court notes that if such consent were to be withheld then, applying the provision as it stands would mean that the detained person ‘shall not be released.’

Rule 54 (4): Review and Reconsideration of Detention on Remand

This rule sets out guidelines for the review and reconsideration of detention on remand, and is one of the most controversial. Paragraph 4 of this rule includes the phrase ‘a detained person shall not be released without the consent of that State [referring to a ‘Third State’ to which the detainee seeks to be released],’ which has been seen as very problematic.

According to the Constitutional Court, applying the ‘plain meaning’ test, this provision would make the release of a detained person entirely dependent upon the consent of a State even in circumstances where a Panel of Judges has found sufficient grounds requiring his or her release.

The Court notes that if such consent were to be withheld then, applying the provision as it stands would mean that the detained person ‘shall not be released.’ The Court has therefore considered that any detention in those circumstances would not be lawful, hence declaring this specific provision of Rule 54 (4) to not be consistent with Article 29 of the Constitution, which governs the right to liberty and security.

Rule 158 (2): Status of the Acquitted Person

This rule potentially allowed the Specialist Prosecutor to continue the detention a person acquitted, if an appeal against the acquittal is planned, raising issues over whether such a deprivation of liberty could ever be lawful.

The Constitutional Court reiterated the importance of no one being deprived arbitrarily of his or her liberty. On this basis, the Court found that, regardless of the circumstances, the continued detention of an acquitted person pending the determination of an appeal against his or her acquittal (in the absence of reasonable suspicion of having committed a separate criminal offence) is not foreseen by law and as such is not in compliance with the Constitution.

Rule 134 (3): General Provisions

Lastly, the Court has held unanimously that it is unable to declare Rule 134 (3) to be consistent with the Constitution.

The rule explicitly states that: ‘a Panel shall not apply laws governing evidence, other than in accordance with Article 12 of the Law.’ When reading Article 12 of the Law, it is clear that it does not relate to laws governing evidence, but rather substantive criminal law, and as such the Constitutional Court has held that it does not understand the meaning behind this rule and its impact. Because of this confusion, the Court stipulated that it was not in a position to declare whether the rule was consistent with the Constitution or not.

What now?

Right after the Judgment on the Referral, the President of the Specialist Chambers issued an order to reclassify the Rules and Procedures of the Court (also known as Annex A) from confidential to public. Now everyone can read them online.

Next, the President of the Specialist Chambers will have to convene a Plenary in order to ensure that this set of rules is revised in line with the decision of the Constitutional Court. The entire set of rules will therefore only enter into force once the Constitutional Court has finally determined that all rules are in compliance with Chapter 2 of the Constitution — not before.K

Feature image: Majlinda Hoxha / K2.0.

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