Murati - Protection of Human Rights Under Criminal Code and Criminal Procedure Law

PROTECTION OF HUMAN RIGHTS AND FREEDOMS ACCORDING TO THE CRIMINAL CODE AND CRIMINAL PROCEDURE CODE OF KOSOVO

The Special Representative of the Secretary General of the UN approved the Provisional Criminal Code and the Provisional Criminal Procedure Code of Kosovo by a special regulation. The Provisional Criminal Code of Kosovo (hereinafter: CC) was endorsed by Regulation No. 2003/25 dated 6 April 2003, whereas the Provisional Criminal Procedure Code of Kosovo [1] (hereinafter: CPC) by Regulation No. 2003/26 of the same date. These two regulations determine that these codes shall enter into force on 6 April 2004. [2] Upon the approval of these two Codes the work on the drafting of other criminal laws has commenced, such as: The Draft Juvenile Justice Code, the Draft Law on the Execution of Penal Sanctions, and the Draft Law on Perpetrators with Mental Disability. It is anticipated that these laws be signed and entered into force together with the two approved Codes on 6 April 2004.

When drafting the CC and the CPC, many provisions have been considered as a basis such as the ones from the applicable laws, from the laws of the regional countries, from the countries of Western Europe and America, from different international conventions, in particular the ones dealing with the protection of human rights and freedoms. The content of a large number of UNMIK Regulations from the criminal and procedural field has also been included in these two Codes. Thus, the endorsement of these Codes ensures the jurisprudence bodies with criminal and procedural legislation rather than the scattered legislation used up to now.

2. Protection of Human Rights and Freedoms according to the Criminal Code of Kosovo

After the Second World War, human rights and freedoms have achieved an extraordinary development in the democratic societies-states with their determination and protection by a series of international documents on a world and European level. Hence, human rights and freedoms are no longer an internal issue of states but a preoccupation of the broad international community. They have, thus, acquired an international dimension. Subsequently, the difference between domestic law and international law is being reduced more and more each day with regard to human rights and freedoms. This fits with the concept of universality of human rights and freedoms.

As such, human rights and freedoms are subject to legal and criminal protection. We may conclude that the number of human rights and freedoms enjoying legal and criminal protection has increased. The main issue of the legal and criminal protection of human rights and freedoms is the conflict between human rights and freedoms and the broad interests of the state or society. [3]

In this context, the Criminal Code of Kosovo pays special attention to human rights and freedoms. The general part and the special part have given great consideration to the protection of human rights and freedoms.

The well-known principle in the Criminal Law: nulum crimen sine lege and nula poena sine lege has been strengthened within the general part. This principle enables the protection of human rights and at the same time decreases arbitrariness amongst state bodies. The legal text has been cleared out from ideological notions. The object of the legal and criminal protection is oriented towards human rights and freedoms. The principle of proportionality of the legal and criminal violence and the intensity of infringement of the object of protection has been duly incorporated. Above all, compared with the applicable law, the penal sanctions have undergone essential changes. Thus, the Criminal Code of Kosovo provides for the following penal sanctions and measures of mandatory treatment: main punishments, alternative punishments, accessory punishments and judicial admonition. [4] Apart from this, it also foresees three measures of mandatory treatment: against perpetrators of criminal offenses with mental incapacity, against perpetrators of criminal offenses with diminished metal capacity and, against perpetrators of criminal offenses addicted to drugs and alcohol. [5] By accepting the alternative punishments, as a replacement of the punishment with imprisonment, the Criminal Code of Kosovo is, indeed, determined for the humanism of the penal sanction system. The enhancements in the system of penal sanctions are results of the achievements in the contemporary criminal policy.

The special part of the Criminal Code provides for legal and criminal protection for a large number of human rights. The most important human rights enjoying such protection are: the right to life and body integrity, fundamental rights and freedoms, honor and prestige, dignity of the personality, marriage and family and the health of people. The protection of human rights and freedoms is also provided for specific criminal offenses against humanity and the International Law, against the environment, against public order and legal actions or against abuse of official duty. The legal and criminal importance of the protection of human rights and freedoms derives from the fact that, in the Criminal Code, the criminal offenses against human rights are systematized in a special group. When considering this group of criminal offenses, we notice that for some of these criminal offenses the punishments have become harsher, in cases when human rights are violated by official persons when exercising official duty or when criminal offenses are committed against a child, a minor, the spouse or the person with whom the perpetrator lives in extramarital communion. The protection of the right to private and family life, physical and psychological integrity, inviolability of residence and correspondence etc. has been enhanced. [6]

The special part foresees a series of new criminal offenses such as: hacking (Article 264), organized crime (Article 274), false statement of accomplice witnesses (Article 308), threatening during criminal proceedings for organized crime (Article 310) etc. At the same time, however, it is noticed that some criminal offenses are decriminalized, which shows that the Criminal Code endorses the request of contemporary criminal law to narrow the criminal zone. It should be emphasized that the punishment with a fine as a main punishment, the cumulative or alternative one has been foreseen for a large number of criminal offenses.

In the special part, in the group of criminal offenses against Kosovo and its inhabitants (Article 108-115), other criminal offenses enabling the legal and criminal protection of Kosovo such as: armed rebellion, espionage, violation of independence, violation of territorial integrity, acknowledgment of capitulation and occupation, as well as criminal offenses against armed forces etc., have not been included. It is worth mentioning that the reason for not including the classical criminal offenses, which practically protect the state, is the unsettled status of Kosovo.

3. Protection of Human Rights and Freedoms according to the Criminal Procedure Code of Kosovo

The new Criminal Procedure Code of Kosovo [7] is supported by the international standards on basic human rights and freedoms, which have a universal and regional character.

The CPC aims to increase the efficiency and to accelerate criminal proceedings during all its phases, based on a new model of investigations conducted by the public prosecutor and assisted by the police.

The Criminal Procedure Code has 557 articles. It is divided into eight parts and 50 chapters.

The CPC is based on a series of general principles which are regulated either directly or derive from the spirit of the legal provisions. Some of them belong to the legal system in general, and as such are considered constitutional principles, whereas others are dedicated to the protection of human rights and freedoms. Some principles dealing with the organization of some procedural subjects acting as procedural bodies have also found space in the Criminal Procedure.

Many of the procedural principles have been adopted in the spirit of international conventions, in particular Article 5 and 6 of the European Convention on the Protection of Human Rights and Freedoms. The principle in dubio pro reo, which existed in theory and practice, now has a legal basis.

3.1. Main features of the Criminal Procedure Code pertaining to the Protection of Human Rights and Freedoms

The Criminal Procedure of Kosovo, same as any other contemporary procedure, has multiple functions. One of these functions is the protection of society from criminality. Apart from the protection of society from criminality, the Criminal Procedure is a means for the protection of human rights and freedoms of the citizens, namely the individuals suspected of committing specific criminal offenses. On the other hand, the Criminal Procedure is a tool for the protection of citizens, the rights of whom have been damaged or threatened through a criminal offense.

Based on these antagonist functions, there are two antagonist tendencies present in all criminal proceedings: the tendency for efficiency of criminal proceedings and the tendency for protection of human rights and freedoms of the citizens against whom criminal proceedings are conducted. [8]

The tendency for efficiency of criminal proceedings enables effective protection of social and individual values, by detecting and punishing each perpetrator responsible for the commitment of a criminal offense. The tendency for the protection of human rights and freedoms of persons against whom criminal proceedings are being conducted, however, enables full protection from the imposition of punishment, if the person is innocent, and from arbitrary behavior and other abuses of state bodies. [9] Efficient protection of the defendant, avoids punishment of innocent persons, which attains an important goal of the Criminal Procedure.

During the historical development of the Criminal Procedure, three types of the Criminal Procedure have emerged: the Accusatory procedure, the Inquisitory and the Mixed one. Besides these three historical types of the criminal procedure, we today hear about a fourth type of the criminal procedure, which is solving criminal issues through agreements (consensus). [10] Thus, for example, the Criminal Procedure Law of Bosnia and Herzegovina [11] accepts the possibility of resolving criminal issues through an agreement between the prosecutor and the defendant, when the court confirms such agreement.

Which of these tendencies shall prevail during a historical phase, first of all depends on the state’s position regarding the rights and freedoms of its citizens. From the historical viewpoint, the Criminal Procedure considers the tendency of protecting human rights and freedoms through criminal proceedings. However, the characteristic of the contemporary criminal procedure is that it never rejects completely one of the tendencies and accepting the other. It, however, reaches a compromise, namely a balance of these two tendencies.

The new concept for the protection of human rights and freedoms in the criminal procedure has greatly reflected the changes in the structure of this procedure. This is firstly noticed from the efforts to harmonize the different systems for the protection of national rights based on the main content of the criminal procedure, which ensures efficiency and protection of human rights. Other issues from the field of criminal procedure emphasize the phenomenon of mutual approach of the systems of criminal procedure. Efforts to regulate the criminal procedure in the same way or similarly are currently present in Europe, in particular in the states of the European Union. This is the reason for considering more and more the International Law of the Criminal Procedure. [12]

The general provisions of the Criminal Procedure, which prohibit taking statements from the suspect and the defendant under duress according to the Criminal Procedure Code of Kosovo, guarantee personal integrity and human dignity. Such procedural prohibition is expanded towards other participants (e.g. witnesses, experts). Thus, according to Article 11 paragraph 3 of the CPC, any action forcing the defendant or other persons participating in the proceedings to plead guilty, or provide any statement through torture, force and threat or under the influence of drugs or in any other way, is prohibited and punished. Such prohibition is further concretized through concrete relevant criminal and procedural actions. [14] Prohibition of the use of force and threat when taking statements, achieves a human postulate of the Criminal Procedure. [15]

During criminal proceedings, the consequences of violations of fundamental rights to human and legal treatment may be of a criminal and legal character and of a criminal and procedural character. [16]

Violations of a criminal and legal character are provided for in the Criminal Code [17] whereas those of a criminal and procedural character are reflected in the impossibility of drafting a court decision from statements taken in a prohibited manner. [18] Unlawful evidence is the one taken in contradiction with the CPC. Such unlawful evidence may be: the defendant’s statement taken without the presence of the defense council, gathering of evidence during a house search or the search of a person contrary to the conditions set forth by law, evidence taken under technical surveillance of telephone conversations and others, when such action is undertaken without a court’s order and in contradiction with the present direction. [19] As abovementioned, the consequences of a criminal and legal character are reflected in the determination of criminal liability for prohibited actions. [20] Nevertheless, incrimination of human rights and freedoms by the legislation of one country does not in itself constitute an argument for the protection rate of human rights and freedoms.

It should be emphasized that in Kosovo, during the time of the dictatorial regime of Serbia, namely in former Yugoslavia, human rights and freedoms were systematically violated. In particular, the criminal procedure has applied the harshest forms of violations of human rights and freedoms such as application of torture, unlawful arrest, battery, abduction, unlawful killing and torturous asphyxiation. [21]

The right to freedom and individual security is an essential human right, recognized and protected by the most important international documents on human rights and freedoms. Based on Article 5 of the European Convention on the Protection of Fundamental Rights and Freedoms, each one enjoys the right to freedom and security and that no one shall be deprived of liberty, except in cases set forth by law. [22] To avoid arbitrary violation of this fundamental human right, according to this Convention, state bodies are authorized to deprive a person from his or her liberty in specific cases and in a strict manner as prescribed by law to satisfy the needs of the criminal procedure. In fact, a person may be deprived of this fundamental right in cases when he or she is subject to criminal proceedings. The Criminal Procedure Code, which is based on Article 5 of the European Convention on the Protection of Human Rights and Freedoms, has strictly determined the conditions under which a person may be arrested, detained [23] or confined to meet the needs of the Criminal Procedure, and the rights the person is entitled to when such actions are undertaken. [24] Upon arrest, the person is informed of his/her rights determined by law. [25]

Detention may not last more than seventy-two hours upon the arrest. The public prosecutor or the police officer issues a decision regarding the detention as soon as possible and no later than six hours from the time of arrest, which decision may be rejected by the detainee with the pre-trial judge and is decided within 24 hours upon the arrest. [26]

Detention on remand may be imposed only under the conditions and in compliance with the CPC. Unlawful deprivation of liberty has been qualified as a criminal offense in Article 162 of the Criminal Code of Kosovo. The provisions of the Criminal Procedure Code provide for compensation of damages, rehabilitation and other rights for unlawful deprivation of liberty. [27] [28]

By making efforts to apply Article 5 of the Convention, the CPC has exactly determined the cases when a person may be deprived of personal liberty, and on the other hand has set forth procedural guarantees which follow upon deprivation of liberty such as: informing the person deprived of liberty on the reasons of such deprivation and the accusation raised against him, the lawfulness of the deprivation of liberty, including indemnity of each victim unlawfully deprived of liberty. [29]

The right to a fair trial is a fundamental human right provided for in Article 6 of the European Convention for the Protection of Human Rights and Freedoms. [30] The Criminal Procedure Code has accepted the aforementioned provisions of this Convention and other international documents, which provide a fair trial for the person against whom criminal proceedings are being conducted. According to this Convention a fair trial implies provision of a series of rights for each person against whom criminal proceedings are conducted. In this way, the Criminal Procedure Code, based on Article 6 of the Convention, has determined that only an independent and impartial court may impose a penal sanction upon the perpetrator of the criminal offense, in a procedure, which has commenced and has been conducted according to the present Code. [31] Furthermore, the CPC, supported by the above-mentioned provisions of this Convention, has determined the accusatory principle of publicity etc. The Criminal Procedure Code has also accepted the presumption of innocence of the defendant and some postulates of the rights of the defendant during the defense such as: the right to be informed of the reasons of his/her accusation, the right to sufficient time for preparing the defense, the right to defense (material and formal), the right to suggest witnesses for the defense, the right to question the witnesses of the accusation, the right to interpretation free of charge. [32] By determining such rights for each person, the CPC creates the conditions for a fair trial. With regard to the application of the principle of independence in the courts of Kosovo, determined in international documents, despite the declarative efforts of the International Civil Administration to apply this principle, the practice in the functioning of these courts has shown that this principle is violated by this Administration itself.

3.2.4. The right of respect to private and family life as well the right to inviolability of residence and correspondence

The European Convention on the Protection of Fundamental Human Rights and Freedoms in Article 8 paragraph 1 determines that each person has the right of respect to his/her private and family life, the right to inviolability of residence and correspondence. Paragraph 2, however, explicitly foresees cases when law for the needs of a democratic society may limit this fundamental right such as: the interest of the state security, the interest of public safety, the economic welfare of the country, protection of peace and order, prevention of crimes, protection of health, protection of morale and protection of human rights and freedoms of others. [33] Based on the abovementioned provisions of the Conventions, the state is obliged to respect the aforementioned rights of the citizens, except in cases determined by law when the state is allowed to limit them for the benefit of the interests of a democratic society, and when such interests are estimated to be the most important ones compared to other interests which cannot be attained in other ways. [34] To provide the individual with the necessary protection from arbitrary interventions by the state competent bodies in the field which Article 8 of the Convention regulates, the general principles of International Law on human rights such as: the person whose rights are restricted is considered as a suspect for committing a certain criminal offense; the decision on the restriction of the abovementioned rights may be brought only by the court; their extension needs to be restricted in time; sanctions need be determined (procedural and legal) in case of failing to respect or violate the provisions providing protection of the right to private and family life. [35]

The Criminal Procedure Code of Kosovo has determined a group of covert and technical measures of surveillance and investigation [36] , which may restrict some of the aforementioned fundamental rights to achieve certain goals in the criminal proceedings. In applying such measures, however, strict conditions have been set forth that need to be met such as: ground suspicion that the person has committed a criminal offense which is executed ex officio; when the information obtained through such ordered measures might support the investigations of the criminal offense, and could have not otherwise been obtained through other investigative measures without causing unreasonable difficulties or potential danger to others. [37] The CPC decisively determines measures that may be ordered by the public prosecutor [38] and on the other hand measures that may be ordered by the pre-trial judge upon request of the public prosecutor. [39] It is obvious that the pre-trial judge may order a large number of these measures.

The CPC, knowing that measures undertaken in contradiction with law constitute violation of a fundamental human right, has foreseen the opportunity for individuals involved in the order, to have the right to appeal with the Panel for surveillance and review of investigations (Article 265) through the chair of the public body competent in the field of judicial affairs within a period of six months upon being informed about the measure undertaken. [40]

Given that the right to inviolability of residence is a fundamental human right, the CPC has foreseen the procedure and has precisely laid the conditions to be complied with for conducting a search of the house or person. [41] Due to the importance of this fundamental human right, the CPC for the search of the house or person has foreseen a written order to be issued by the pre-trial judge upon the motion of the public prosecutor, and in urgent cases based on the request of the judicial police. Exceptionally, the search may be conducted without presenting an order, namely without an order issued by the pre-trial judge when conditions set forth by law are met. [42] The CPC provides for material, legal and procedural sanctions [43] when a search is conducted in contradiction with law. Evidence gathered in contradiction with the law is, indeed, inadmissible. [44]

Conclusion

The endorsement of these two codes and other laws of the criminal field no doubt represent a great achievement in rounding up the criminal and procedural legislation in Kosovo. These two codes are systematic laws mostly important for Kosovo, which protect human rights and freedoms based on international standards. Incrimination of violations of human rights and freedoms in the legislation of a relevant state is not in itself an argument also for the protection of human rights and freedoms. The Criminal Code of Kosovo and the Criminal Procedure Code, despite of being reviewed by the Assembly of Kosovo and comments and concrete suggestions provided, they were endorsed by the SRSG and not by the Assembly of Kosovo. Thus, the manner in which these two Codes were promulgated greatly differs from the procedure for the promulgation of laws in other democratic countries. Furthermore, the procedure for the endorsement of these two Codes is not a usual one in democratic states and does not ensure a proper climate for their consequent application, namely it does not provide adequate conditions for a functional and democratic society with established rule of law. When we add to this the dualism in the exercising of powers and responsibility, namely lack of a clear definition between UNMIK and Kosovar Institutions, lack of efficiency on the part of the jurisprudence bodies (police, prosecutor’s offices and courts) in the application of laws in general, and in particular in the field of the protection of human rights and freedoms, is obvious. Lack of efficiency in maintaining public order and security for citizens and protection of human rights and freedoms can best be seen from the tragic events of 17 and 18 March 2004. During these events, mutual efforts were being made by UNMIK and the Kosovar Institutions in trying to transfer responsibility to one another, despite of knowing that the authority for security and justice falls within the reserved powers of the Special Representative of the Secretary General of UN. The reasons for this inefficient model of governance with Kosovo must be sought in Resolution 1244 of the Security Council.

Even laws that are well drafted such as the ones approved in Kosovo which are to be applied consequently by the jurisprudence bodies and be respected by the citizens need to be endorsed through a democratic procedure. On the other hand, the willingness of the citizens to respect laws is an important circumstance for the functioning of a democratic society. This readiness of the citizens shall be even greater if they have been involved in the drafting process through their elected representatives. Democratic societies are distinguished through greater results in their efforts to increase to a great extend the awareness of citizens on the necessity of respecting laws. This is the path that Kosovo should also follow.

Currently, societies found in transition are the ones known for disrespect of laws or their dodging on the part of citizens. Kosovo belongs in these societies as well.

If these two Codes and other provisions from the criminal field in practice ensure protection of human rights and freedoms to a greater extent for all citizens living in Kosovo, regardless of their ethnic, religious political etc. background, Kosovo shall fulfill one of the most important standards determined by the International Community. Consequent application of these two Codes as well as other criminal laws shall ensure protection of human rights and freedoms for all citizens of Kosovo, regardless of their ethnic background. This will enable that the status of Kosovo be settled in compliance with the political will of the peoples of Kosovo.

[1] The exact name of these Codes in Albanina and English is: “The Provisional Criminal Code of Kosovo and the Provisional Criminal Procedure Code of Kosovo”. The same Codes in Serbian are called: “Laws (not Codes). It is not known why the Serbian has not been harmonized with the Albanian and the English name. This issue, however, is solved based on Regulation No. 1999/1, which stipulates that in case of discrepancies in the translated versions, the English version shall prevail.

[2] The nine months period of the so called vokati legis is justified with the need for sufficient time for acquaintance and training regarding the implementation of these Codes.

[3] For details on this issue see: Bavcon Ljubo, Kaznenopravna zaštita prava covjeka, Hrvatsi Ljetopis za Kazneno pravo i praksu, Vol. 4 No. 2, 1997, Zagreb, page 395-402.

[6] Compare: Sjercic H. op. cit. page 351.

[7] For further details regarding the regulation of criminal proceedings according to the new Criminal Procedure Code of Kosovo see the paper: Sahiti Ejup -Murati Rexhep - Kunštek Eduard, Criminal Procedure System of Kosovo , published in the book: Pavišic Berislav, Transition of Criminal Procedure Systems, Rijeka, 2004, page 125-145; Sahiti Ejup - Murati Rexhep, Criminal Procedure Code of Kosovo (Theoretical review), “Law”, Prishtina, 2003 No. 3 page 7-36.

[8] For further detail regarding these two tendencies see: Bayer Vladimir, Jugoslovenska krivicno procesno pravo, book one, Uvod u teoriju krivicnog procesnog prava, Zagreb, 1977, page 12; Krapac Davor, Kazneno procesno pravo, first book: Institucije, Zagreb, 2000, page 9, 10 and 11. Whereas, with regard to the Criminal Procedure in Kosovo in the light of these two tendencies see: Murati Rexhep, Efficiency of criminal proceedings and the protection of the rights and freedoms of the defendant in criminal proceedings, “Law”, Prishtina No. 3, 1996, page 115-132.

[10] Pavišic Berislav, Komentar Zakona o krivicnom postupku, Rijeka, 2003, XXXIII.

[11] “Sluzbeni Glasnik BiH” No. 3/03 from 24.01.2003.

[13] The right to integrity and human dignity is provided for in Article 3 of the European Conventions on the Protection of Human Rights and Fundamental Freedoms: “No one shall be subject to torture, punishment, inhuman or degrading treatment”. This fundamental right is similarly protected by Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Pact on Civil and Political rights.

[14] See: Article 155, 161, subparagraph 4.

[15] Hajrija Sjercic –Colic, Krivicni postupak i zastita prava i slobodacovjeka, Citanka Ljudskih prava, Sarajevo, 2001, page 352.

[17] Taking of statements under duress as a criminal offense has been foreseen in Article 163 of the Criminal Code of Kosovo.

[18] See: Article 153 and 235of the CPC.

[19] Compare: Hajrija Sjersic – Colic, op. quotation, page 353.

[20] Such criminal offenses according to the Criminal Code of Kosovo are: the criminal offense of violating the inviolability of domicile as provided for in Article 166; the criminal offense of unlawful search as provided for in Article 167; the criminal offense of unauthorized eavesdropping and tonic recording as provided for in Article 170.

[21] Sahiti Ejup, Human Rights and Freedoms viewed from the criminal and procedural aspect “Law”, Prishtina, 1998, No. 3-4, page 74.

[22] This fundamental right is provided for in Article 3 and 9 of the Universal Declaration of Human Rights and Article 9 of the Pact on Civil and Political Rights.

[28] For example in De Wilde, Oms i Versyp versus Belgium, 1971 - Goimen, D: Kratki vodic kroz Evropsku konvenciju o ljudskim pravima, 1998, page 27. According to Hajriju Sjercic - Colic, op. quotation, page 354-footnote 29.

[29] Krapac Davor, Europska Konvencija o zastiti ljudskih prava i temeljnih sloboda i hrvatski kazneni postupak, Hrvatski Ljetopis za Kazano pravo i praksu, Zagreb, 1995, Vol. 2 - No. 1, page 15.

[30] This fundamental right is foreseen in Article 6, 7, 10 and 11 of the Universal Declaration of Human Rights and Article 14 of the International Pact on Civil and Political Rights. However, the International Pact on Civil and Political Rights offers more guarantees for the protection of the defendant rather than the European Convention on the Protection of Fundamental rights and Freedoms. Thus, In Article 14 paragraph 3 item b provided for the right of the defendant to communicate with the defense council; Article 14 paragraph 5 provides for the right to present legal remedies due to factual and legal mistakes; Article 14 paragraph 3 item 3 g. provides for prohibition of forcing a person to testify against himself or herself or to confess the act; Article 14 paragraph 3 item d.e provides for the right to be judged only in his/her presence; Article 14 paragraph 4 provides for the obligation of the state to constitute a special procedure for juveniles. The European Convention on the Protection of Human Rights and Freedoms does not explicitly foresee such rights, despite the fact that some of them are implied form the other provisions (for e.g. the right of the defendant to remain silent - the provisions of Article 6 paragraph 2 which includes the presumption of innocence of the defendant - According to Krapac D. op. quotation, footnote 80 page 21.

It is worth mentioning that the right to remain silent is not explicitly foreseen in the Convention (Right to silence) a manner of protecting the defendant. The right of the defendant to not declare himself/herself is more adequate rather than the right to remain silent - Pavisic B.op. quotation, footnote 56, page 15.

[32] For further details on all these rights, which aim to ensure a fair trial see: Krapac D. op. quotation, footnote 80 page 23.

[33] This fundamental human rights is regulated by the provisions of Article 12 of the Universal Declaration on Human Rights, and Article 17 of the International Pact on Civil and Political Rights. We deed to emphasize that the Convention is harsher than the Pact if we consider ho wit regulates the restriction of this fundamental right in paragraph 2 of Article 8. The Pact, indeed, only in principle prohibits arbitrary and unlawful interference to private and family life. Based on Krapac D. op. quotation, footnote 30, page 34.

[34] The European Court on Human Rights, by reviewing the issue of protecting freedom and confidentiality of correspondence, for the first time in the case of Klass c/a of Germany, has concluded that protection of the secrecy of telephone conversations belongs within the scope of confidentiality to correspondence. The European Court of Human Rights, besides the case Klass versus Germany (1978) regarding a wiretapping of telephones, has also dealt with the case of Malone versus Great Britain (1985) and the case Huvig and Kruslin versus France (1990). Based on Krapac D. Cf. ibid.page 35.

[35] Sjeric-Colic H. op. quotation, footnote, page 361.

[37] Articles 257 paragraph 1, subparagraph 1 and 2 CPC.

[38] Article 258 paragraph 1, subparagraph 1, CPC.

[43] It has previously been emphasized that violation of inviolability of residence constitutes a criminal offense provided for in Article 166 of the Criminal Law of Kosovo.