Perspectives | Justice

Unimplemented court decisions

By - 27.10.2023

Institutional negligence is costing women their lives.

Justice in a state requires more than the existence of legal norms, it also means they are applied fairly to all citizens.

In the numerous cases of gender-based violence in Kosovo in recent years, legal norms have not been consistently implemented. Cases involving violence against women have highlighted the importance of crime prevention, whether through penalties or through the proper implementation of court decisions. 

Criminal sentencing is a fundamental component of the justice system, ensuring that individuals who have committed crimes receive a fair and appropriate sentence which they are required to serve. However, this doesn’t always happen. In Kosovo, it is not uncommon for those who should be serving sentences to remain free. Similarly, there are cases when individuals manage to evade sentencing all together. 

On top of this, short sentences encourage criminals to continue their criminal activity. Failing to address the risks posed by individuals with criminal histories, particularly in cases of gender-based violence, as well as delayed or unimplemented court decisions, have cost women their lives.   

Women placed in protective custody have become victims of femicide, despite the fact that the perpetrators had a history of violence that was known to the authorities. The streets of Prishtina and other cities in Kosovo are often filled with protesters demanding that attention be given to these issues, but the authorities have not listened

The Government is failing to protect women 

In 2021, the murder of 18-year-old Marigona Osmani shocked the Kosovar public. Two men left her body at the Emergency Center in Ferizaj. 

Information that was found later on suggested that this could have been prevented. 

Dardan Krivaqa, who has been sentenced to life in prison by the Basic Court in Ferizaj for the murder of Osmani, had a prior criminal record. Krivaqa was convicted of theft and assaulting a police officer and was sentenced for 180 days in prison. He only served 30 days of his sentence in jail and the rest was served in community service. 

Arber Sejdiu, now sentenced for 15 years in prison for assisting in Osmani’s murder, was suspected of attempted murder in 2013 but only served two months under house arrest. 

The Kosovar Judicial system allowed Dardan Krivaqa, with 135 penal records and Arber Sejdiu, accused of attempted murder, to walk free. Krivaqa went on to commit Osmani’s murder. 

This was not the only murder that could have been prevented, the authorities’ incompetence in safeguarding women was also highlighted a few months prior to Osmani’s murder. 

In March 2021, Kosovo public woke up to the news that Sebahate Morina, 42 years old, had been found dead. It was revealed that Morina was killed by her ex-husband, who then also killed himself. 

Morina had reported the abuse she had been going through in November of 2019. At the end of 2019, her ex-husband was detained for abusing her. In January 2020, the Basic Court in Gjilan sentenced her ex-husband to 90 days in prison, a 200 euro fine for domestic violence and a further 30 days for assault. His prison sentence was replaced with a 1,300 euro fine. Domestic violence is a criminal offense based on Kosovo Penal Code. Article 248 of this code states that the sentence for this criminal offense is a fine and three years in prison. 

Morina was given a protection order until the end of 2020. According to the Law on Protection against Domestic Violence that was in effect during this case, protective custody is granted through a court decision and outlines protection measures for the victim. According to the Law, these protection measures should include psychological treatment, restraining orders and measures to halt domestic violence. The Kosovo Police is the responsible authority for implementing and enforcing these protection measures. 

In addition, 11 days prior to Morina’s murder, on March 3, 2021, the Basic Prosecutor’s Office in Prishtina initiated a criminal case against her ex-husband. According to a report by the Kosovo Institute for Justice, since March 4 “The State Prosecutor has not undertaken any investigative or other action to clarify the case or measures to provide necessary protection.”

In July 2021, Morina’s daughter, Velerda Sopi, submitted a request to the Constitutional Court to evaluate the constitutionality of the “actions and inactions” of the Basic Court in Gjilan, the Basic Prosecutor’s Office in Gjilan, the Police Station in Gračanica and the Basic Prosecutor’s Office in Prishtina regarding Morina’s case. 

The Constitutional Court’s judgment concluded that the above institutions failed to protect Morina’s life. 

The Constitutional Court found that the state institutions did not react promptly or make a genuine and immediate assessment of the risks of Morina’s situation. The institutions could have extended the protection order for the period of one year. However, when Morina withdrew the statement she gave to the Gračanica Police Station, in which she reported that her ex-husband had assaulted her, the investigation was closed. The withdrawal of the statement was enough for the criminal prosecution against the ex-husband not to continue.

Here, the institutions violated the Council of Europe’s Convention on Preventing and Combating Violence against Women and Domestic Violence, known as the Istanbul Convention

This Convention is part of Kosovo’s legal system and takes precedence over local laws. According to this act, investigations and criminal prosecution can continue even if the victim withdraws her testimony or complaint.

At the end of November 2022, in the courtyard of the University Clinical Center, where she had gone to give birth, Hamide Magashi was killed by her ex-husband. 

On July 6, 2022, nearly five months before she was killed, Magashi reported psychological abuse and constant threats. 

In September 2022, the police raided the house of Magashi’s ex-husband, Sokol Haliti, and found two weapons. The Prosecution released him following standard procedure, and he was fined 300 euros by the court. This happened despite the fact that the penalty for the criminal offense of “unauthorized ownership, control or possession of weapons” is a fine of up to 7,500 euros or five years in prison. The whole institutional system, from the Police, to the Prosecution and the Court, failed to safeguard her life. 

Magashi had a protection order issued by the Basic Court in Ferizaj, which was valid from September 2022 to March 2023. The order was submitted to the Center for Social Work and the Police Station in Lipjan. The failure of the Kosovo Police to implement this protection order had tragic consequences.

In December, four police officers, including the Commander of the Police Station in Lipjan, a sergeant and two detectives, were suspended and investigated for “abuse of position or authority” and “forgery of official documents.” However, in May 2023 they returned to work. 

Besides our system not being able to prevent these crimes from happening, the common denominator in all these cases are trials that last years, frequent retrials and short sentences. 

The recent increase in cases of domestic violence indicates that the intended goal of convictions is not being met, emphasizing the need for more appropriate sentencing measures. This should serve as sufficient evidence to demonstrate the gravity of gender-based violence to Kosovo’s institutions and underscore the need for equally serious efforts to combat it.  

Feature Image: K2.0

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