Fair trial based on penal legislation of Kosovo
| Author | Mirvete Uka |
| Position | University 'Hasan Pristina', Kosovo |
| Pages | 148-157 |
Vo
l. 4 N
o
. 2
J
u
ly
, 2018
A
cademic Journal o
f
Business,
A
dministration, Law and Social Science
s
II
PCCL Publishin
g
, Graz-
A
ustri
a
I
SSN 2410-391
8
A
cces online at www.ii
p
ccl.or
g
14
8
F
air trial based on penal le
g
islation of Kosovo
PhD
(
C
)
Mirvete Uk
a
U
n
i
vers
i
ty “Hasan Pr
i
st
i
na”, Kosov
o
Ab
str
a
c
t
F
air trial is the main principle or as is o
en said principle above principles on penal procedure.
T
his principle is based on respecting basic human rights and freedom towards defendant
in penal procedure. The presumption of innocence, publicity of trial, right to protection,
t
rial in reasonable time are some of the rights that are guaranteed to defendant on penal
procedure by
E
uropean Convention on Human Rights and Fundamental Freedoms (
E
CHR)
a
nd by the applicable local legislation. Penal procedure legislation o
f
Kosovo is harmonized
with legislations of countries of the
E
uropean
U
nion but it has still many challenges. Since
Kosovo is not part of
E
uropean Council and not signatory of
E
CHR its citizens do not have
possibility to appeal on
E
uropean Court on Human Rights (
E
CHR) in case their rights are
v
iolated regarding fair trial by local courts.
I
n Kosovo, there is a perception that these rights
a
re respected based to the society range. Main objective of this manuscript is the analysis of
fair trial on penal legislation in Kosovo in comparison to
E
CHR
.
K
e
y
words: fair trial, penal procedure, presuming of innocence, defendant,
E
CHR, Kosovo
P
e
n
a
l Pr
o
c
e
d
u
r
e
C
o
d
e.
I
ntr
oduc
t
io
n
T
he right
f
or
f
air and im
p
artial trial is based in article 31 o
f
Constitution o
f
Re
p
ublic
o
f
Kosovo, which states that ever
y
one is e
q
ual in
f
ront o
f
the law. Based on article 5 o
f
K
osovo Penal Procedure Code (KPPC) ever
y
p
erson sus
p
ected or accused
f
or a
p
enal
a
ct
h
as t
h
e rig
h
t to re
q
uest im
p
artia
l
p
ena
l
p
roce
d
ure im
pl
emente
d
in reasona
bl
e
time. The Court has to take care
f
or the
p
rocedure without crawling and
p
revent an
y
m
isuse o
f
rights that belong to
p
artici
p
ants in
p
rocedure (Sahiti, Murati, 2016, 80).
R
egardless that on article 2 o
f
Penal Procedure Code is said that “onl
y
inde
p
endent
c
om
p
etent and im
p
artial court can
p
ronounce
p
enal sanction to commi er o
f
p
enal
a
ct...” without
p
récising that Court should be founded b
y
law, this article also as article
6
o
f
KPPC ex
p
resses the s
p
irit o
f
article 14,
p
aragra
p
h 3,
p
oint c) o
f
I
nternational Pact on
C
ivil Right (
I
PCR) and article 5 and 6
p
aragra
p
h 1 o
f
E
CHR. Standard determined b
y
E
uro
p
ean Convention
f
or Courts
f
ounded on law aims creating o
f
securit
y
regardless
c
hanges o
f
p
olitical classes on the countr
y
the Courts will guard its inde
p
endence.
I
m
p
lementation o
f
the right
f
or
f
air trial
p
la
y
s decisive role in
p
reserving order, rule
o
f
law and trust in state authorities.
If
a
f
air trial s
y
stem is guaranteed in
f
ront o
f
i
nde
p
endent and im
p
artial courts there ma
y
be a guarantee that:
- t
h
e gui
l
t
y
pl
ea s
h
a
ll
b
e
b
ase
d
on we
ll
-reasone
d
evi
d
ence
;
- that the executive
p
ower, i
f
deemed necessar
y
, bears res
p
onsibilit
y
and
- has an e
ective s
y
stem
f
or solving the disagreements between
p
rivate
p
arties.
1
The basic aspect of the right to a fair legal process is that respect for it is not simply
The
basic
aspect
of
the
ri
1
Manual Trainin
g
for
I
nternational Human Ri
g
hts (2016). 195.
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