Lawyers demand that the Supreme Court's interpretation that acquitted the official who failed to declare assets not be followed

Lawyers and legal experts have urged prosecutors and courts not to rely on the Supreme Court's interpretation, based on which hundreds of officials have been released from criminal liability for failure to declare or falsely declare assets. In the presentation of the IKL report titled: "The judicial error that removed all responsibility from lawbreakers", it was stated that this decision was issued based on an repealed article and that this is harming the prosecution of criminal offenses of corruption.

Not to implement the Supreme Court's interpretation was the recommendation made by lawyers and legal experts during a panel discussion, in which the Kosovo Law Institute (KLI) report, "The judicial error that removed all responsibility from lawbreakers," was presented. 

This report addresses a decision of the Supreme Court, which, based on an repealed article of the Law on Declaration of Assets, has exempted from criminal liability officials who do not declare assets or declare them falsely, considering it a misdemeanor and not a criminal offense.
Burim Ademi, a judge at the Supreme Court, said that the 2024 decision should not be considered the sole basis for building judicial practice and added that since there is a legal basis, prosecutors and courts should handle cases of non-declaration of assets, so that the decision can be referred back to the Supreme Court and the problem can be effectively resolved.

"The prosecution should process the cases, I think. And the regular courts, I think, should also handle them, because judicial practice is not built on the basis of a single case in whatever context the interpretation of the legal aspect has been made," he said during Thursday's roundtable, organized as part of the activities for Anti-Corruption Week.

Afrim Atashi, who is the director of the Department for Asset and Gift Control at the Anti-Corruption Agency (APK), stated that after the Supreme Court's decision, the criminal reports filed by the Agency with the Prosecutor's Office are not taken into account, based precisely on the Supreme Court's decision. 

He said that this practice has also violated the powers of the KPA.

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"In a way, the very existence of the institution does not justify it, because the agency is called upon to file criminal reports for failure to declare assets or false declarations, and in this sense, almost all of the criminal reports we have been filing recently have been dismissed by over 90%, and 90% of them mention the Supreme Court's decision," Atashi emphasized.

Arian Salihu, a prosecutor at the Basic Prosecution Office in Pristina, emphasized that the Supreme Court's decision cannot be deviated from.

"The State Prosecutor must of course implement the standards set by the Supreme Court or other courts when handling the cases we have in force. Whether we like it or not, the courts do the unification of judicial practices and we as prosecutors are obliged to be in line with the practices set by our courts," said Salihu.

But the author of the report, Gëzim Shala, who is a senior researcher at IKL, said that the Supreme Court's decision has caused great damage to the processes.

"This decision of the Supreme Court, which, according to this analysis, turns out to be a judicial error referred to in an repealed provision, has had a domino effect on the entire justice system, leaving the persons who commit this criminal offense without responsibility in such a way that all the reports of the Agency for the Prevention of Corruption have been dropped or acquittals have been issued," said Shala.

In April 2024, the Supreme Court overturned the decisions of the Basic and Appeal Courts convicting a former public official for failing to declare assets. 

For this acquittal, the Supreme Court based its decision on Article 17 of the Law on Declaration of Assets by Public Officials, repealed with the amendment made in 2014. 

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For 10 years, public officials have been convicted of failure to declare and falsely declare assets. And since 2024, hundreds of officials have not been prosecuted because the Supreme Court has only considered it a misdemeanor.

The report published on Thursday by the KLI also includes four recommendations, according to which the State Prosecutor and the courts should not follow the interpretation of the Supreme Court; the Supreme Court should adopt a principled legal position; the prosecutions should develop the prosecution, to give the Supreme Court the opportunity to issue a second decision on this matter, and the courts should follow a punitive policy in accordance with the Criminal Code.