Page:SECOND ANNUAL REPORT 2001 – 2002.pdf/18



In this Report, the Ombudsperson found that the request of the UNMIK police to detain A.P.L. for an initial period of 72 hours was not `lawful' in the sense of Article 5 of the European Convention on Human Rights, on several grounds. According to the applicable law, a law enforcement authority may detain a person suspected of having committed a criminal offence for an initial period of up to 72 hours only on an exceptional basis and in well-defined circumstances. Within 24 hours of such detention, the authorities must provide the detainee with a copy of the detention order, the contents of which are also delineated in the applicable law. The detainee also has the right to judicial review of any such order within a short time frame and in accordance with procedures prescribed by the law. The Ombudsperson found that none of these requirements were met in connection with the initial detention of A.P.L.. The Ombudsperson also found that the forms used by the UNMIK police to request the imposition of detention did not conform with the applicable legal standards. The Ombudsperson further found that the failure of the authorities to bring A.P.L. before the competent judicial authority between 31 January and 5 February 2001 constituted a violation of his right to be brought `promptly' before a judicial authority as guaranteed under paragraph 3 of Article 5 of the European Convention on Human Rights. The Ombudsperson finally found that the lack of an enforceable right to compensation for the contraventions of the aforementioned rights constituted a violation of A.P.L.'s rights under paragraph 5 of Article 5 of the Convention.

The Ombudsperson recommended the SRSG, no later than 16 November 2001, 1) to ensure that all forms or other documents constituting orders, requests or similar acts by a law enforcement agency calling for the initial detention of individuals in the context of a criminal investigation or proceeding be revised to conform with the domestic and international standards; 2) to issue an administrative directive or other appropriate administrative act, incorporating the revised forms or other documents and instructing all law enforcement agencies and all heads of detention facilities in Kosovo to guarantee both the consistent application of the relevant provisions of the applicable domestic law and compliance with the relevant international human rights standards; 3) to instruct the responsible parties in the Kosovo Police School to integrate the points raised in the Report into the training programmes for the Kosovo Police Service, through the dissemination of the Report and/or the revised forms and/or the administrative directive or instruction called for in the previous recommendations; 4) to comply with the recommendation set forth in Special Report No. 3 (29 June 2001) and reiterated in Special Report No. 4 (12 September 2001) and the Reports in the cases of Cele Gashi, Jusuf Veliu and Avdi Behluli (12 September 2001), to promulgate a Regulation setting forth the legal bases for compensation claims for unlawful deprivations of liberty and instituting a system of proper judicial proceedings in this respect; and 5) to disseminate the new UNMIK Regulation in all languages widely used in Kosovo, and, in particular, to distribute the Regulation to all persons who have been deprived of their liberty and all judicial officers or others exercising judicial authority in Kosovo.

'''In a letter dated 13 November 2001, the SRSG informed the Ombudsperson that a Commission for Compensation for Wrongfully Accused and/or Wrongfully Detained Persons had been established under Justice Department Circular 2001/1, through which A.P.L. could apply for compensation. The SRSG also enclosed copies of two letters, also dated 13 November 2001, sent to the following persons:''' To the UNMIK Police Commissioner -- requesting that the Detention Request Form be revised to reflect the hour from which an individual was deprived of liberty, reminding the Commissioner of the obligations to inform a detainee in writing of the reasons for his or her arrest or detention and to bring him or her before the competent judicial authority within the time limit prescribed by law. The SRSG also asked the Commissioner to emphasize these obligations to all police officers and to inform him of the reasons for the failures of the UNMIK Police to respect the applicable law in the case of A.P.L.. To the Director of the UNMIK Department of Judicial Affairs—requesting information about the failure of the responsible authorities to bring A.P.L. before the competent judicial authority within the time limit prescribed by law and of the investigative judge to provide a reasoned basis for the detention of A.P.L.