International Crime

The rights of accused before the KSC are based on the Constitution of Kosovo and the highest standards of international human rights law and they are described in detail in Article 21 of the Law. For example, an accused shall be presumed innocent until proven guilty beyond a reasonable doubt.

The KSC shall protect the fundamental rights of an accused, including by providing adequate time and facilities to prepare his or her defence. An accused has the right to counsel, who is qualified to be on the KSC’s List of Counsel. If an accused does not have enough money to pay for counsel, the KSC will pay for the counsel. An accused has the right to be tried within a reasonable time in his or her presence.

The Rules of Procedure and Evidence (Rules) provide a blueprint for how the Judges are to conduct the proceedings in a manner that protects these rights through each step of the judicial process.

For example, at the very first appearance of the accused before the court, before the preparations for a trial begin, the Pre-Trial Judge must make sure that the right of the accused to be represented by a lawyer is being respected, that the accused is informed of the charges against him or her in a language he or she understands and that the accused understands that he or she may plead guilty or not guilty.

The right of an accused to defend himself or herself through a lawyer of their choosing protects every single accused, including those that lack the financial means to pay for such a lawyer themselves. To guarantee this right for such an accused, the Registry administers a transparent legal aid scheme consistent with best practices in the field.

To have a fair trial, the accused must have access to the evidence or facts that the Specialist Prosecutor intends to use during the trial. This is addressed through a process called “disclosure”, whereby the Specialist Prosecutor must make available to the defence all supporting evidence to his case. Moreover, if the Specialist Prosecutor finds any information that would suggest the innocence of the accused or mitigate his or her liability, the Specialist Prosecutor must disclose this immediately.

The disclosure of evidence is subject to restrictions only where strictly necessary, for example, when a Judge orders the redaction of information, the use of pseudonyms or other measures to protect witnesses.

A fair and public hearing is another basic right. As a general principal, after an indictment becomes public, proceedings will be open to the public and people can watch them in Albanian, Serbian or English on the KSC website. Judges may choose to close certain parts of the proceedings, for reasons such as the protection of witnesses, victims and anyone else who has been in contact with us.

The Rules also provide the defence with, among other things, the ability to question, cross-examine and refute the evidence provided by the Specialist Prosecutor, and present evidence and witnesses in support of their own case.
At the end of the trial, a panel of three Judges will decide for each charge if the guilt of the accused was proven beyond a reasonable doubt.

The accused has a right to appeal the judgment to a separate Appeals Panel and, under certain circumstances, a right of third instance appeal to a Supreme Court Panel.

When other remedies provided by the Law are exhausted, individuals who believe that their fundamental rights or freedoms guaranteed under the Kosovo Constitution have been violated during the proceedings, can refer the matter to the Specialist Chamber of the Constitutional Court.

Where suspects or accused before the KSC can demonstrate that they cannot afford to pay for their defence and if they do not receive legal aid through other means, the KSC will pay in full or in part for a counsel of their choosing who is qualified to be on the List of Counsel. The legal aid covers the remuneration of counsel and members of their team and will be paid directly to counsel.

The Legal Aid Regulations exemplify best practices in legal aid standards, guaranteeing compliance with the fair trial principles enshrined in the Constitution of Kosovo and the Law whilst ensuring the sound financial management of the legal aid scheme’s resources.

The legal aid is calculated by the Registrar, in consultation with the competent panel and counsel, taking into account the complexity level of the case and the services to be provided by counsel during each stage of the proceedings. Additionally, any costs that may arise during the course of investigations or as a result of the need for translations may be covered up to a certain amount.

The Regulations transparently set out how to apply for legal aid and which documents will have to be provided to the Defence Office. More specifically, a declaration of means form will have to be submitted as part of a request for legal aid. The Defence Office will conduct a thorough assessment of the financial means of the applicant to decide whether full or partial legal aid should be dispensed.

Where an applicant does not cooperate or provides false information, the request for legal aid will be denied. If the applicant is not satisfied with the decision of the Registrar, he or she has the right to appeal that decision before a panel of Judges.
The Regulations specify the maximum fees and other eligible costs that may be paid upon presentation of an invoice. The procedure for oversight and monitoring by the Defence Office of the spending of the legal aid is also contained in the Regulations.