The Kosovo Law Institute (KLI) has published today the report "Asset Declaration - A Judicial Error That Removed All Responsibility from Lawbreakers", presenting findings on the impact of a Supreme Court ruling that, according to the KLI, has created a new standard and has decriminalized in practice the criminal offense of failure to report or falsely reporting assets by public officials.

During the presentation of the report, KLI senior researcher Gzim Shala said that although the failure to declare assets had been criminalized since 2013 and was preserved in the new Criminal Code, a Supreme Court ruling “has effectively changed the law.”

According to him, this decision has created "unequal and unlawful approaches", causing hundreds of officials previously convicted of this offense to be treated unequally compared to new cases.

Shala stressed that the Supreme Court's decision referred to an repealed norm, specifically Article 17 of the 2011 Law, treating failure to declare assets as a misdemeanor and not a criminal offense. He recalled that even at a time when the law was properly implemented, courts had in practice treated this offense with lenient sentences.

According to the senior researcher of the KLI, in this whole situation, it is clear that the Supreme Court has issued a judgment based on a serious error that has had a widespread negative effect on the treatment of these cases. For this reason, in accordance with Article 102.3 of the Constitution, the Courts must continue to apply the law and not the Supreme Court's standard, until a new decision is issued by the Supreme Court. Meanwhile, the latter must issue a legal position to clarify this situation.

At the roundtable organized by IKL, participants from the judiciary, prosecution, advocacy, and state agencies provided comments on the findings of the report and the contested judgment of the Supreme Court.

Burim Ademi, a judge at the Supreme Court, stated that a single case cannot serve as a basis for building judicial practice.

"Judicial practice cannot be built on a single decision. We must see it in the context of legal changes. We cannot talk about the sustainability of practice based on just one case," said Ademi.

Judge Ademi said that it is clear that legal provisions that have been repealed cannot be applied in the adjudication of criminal cases if they were not in force at the time of the commission of the criminal offense or if they are not favorable in the context of the criminal offense.

He also added that there are cases when the Supreme Court, from a certain decision, has had an approach or has changed the judicial practice when another case has come for treatment. He said that the entire prosecutorial and judicial system should not be referred to based on a specific specific case.
However, he added that the report's recommendations are fair.

On the other hand, Arianit Salihu, a prosecutor at the Basic Prosecution Office of Pristina, said that the Supreme Court's ruling "has created a new standard" and that it has a domino effect: "Now we have a new standard on what is considered property in a criminal sense and how this element is treated. The decision of April last year has completely changed the approach."

He added that he agrees with the KLI report.

Gent Beka, a judge at the Basic Court of Pristina, emphasized the complexity of asset declaration cases.

"It is difficult to separate administrative from criminal liability. Many of the cases are related to reports from the Anti-Corruption Agency, which also includes witnesses," said Beka.

Afrim Atashi, director of the Anti-Corruption Agency (APA), expressed great concern about the limitation of his institution's powers.
"The Supreme Court's ruling has severely limited us. Even though our criminal charges are dismissed, we are obligated by law to continue filing them," Atashi declared.

Meanwhile, Ehat Miftaraj, executive director of IKL, criticized the decision's impact on institutional integrity.

"We have always asked that judges pay more attention to corruption cases. But a single decision destroys the entire oversight system. An example is the case of Minister Donika Gërvalla. The minister shouts at the judges. She holds the judges accountable and in the end it turns out that the minister is amnestied by the Court and by this decision," said Miftaraj.

Lawyer Alban Krasniqi also spoke at the roundtable, calling the Supreme Court's decision "strange and controversial, and that it cannot be legal, which says that the act is illegal only when there is illegal wealth. No one declares illegal wealth, therefore, according to Krasniqi, this logic does not hold.

The KLI report speaks of the serious consequences in the fight against corruption and public integrity, due to a new judicial standard that has affected the entire justice system.

The roundtable marked an important debate on legal challenges, judicial standards, and the need to correct systemic errors in the handling of asset declaration cases.

The published report can be found at this link.

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