Many phone calls collected through wiretapping undertaken by the Kosovo Police during different investigations continue to remain unsafe and easily accessible by unauthorized persons.
By: Labinot Laposhtica
Kosovo institutions have failed to establish strict legal mechanisms which would prevent the investigations obstruction, and guarantee the protection of privacy from the possible leaking of wiretaps.
Special investigative techniques, in particular, legal wiretapping, is one of the most intrusive measures on the parties privacy on which the Prosecution is collecting information while investigating a criminal case. Thus, the material that has been gathered during the implementation of interception measure can include highly sensitive data of the people being intercepted.
The Prosecution and Kosovo Police failed to build effective mechanisms that ensure the materials will not be used beyond the investigation purpose and that the interception will not be used in the political arena or for blackmailing.
Moreover, both institutions have not been able to create prevention or security mechanisms but they are satisfied with the fact that cases of misused interceptions will be criminally pursued.
There is no such practice that would increase the materials confidentiality. There are also high doubts that the prosecutors don’t comply with their obligation to notify the parties that have been intercepted and for which the criminal investigation is ceased.
Twice, in the last five years, there have been published interception who made the news like in the case of high political leaders in the scandals known as “Pronto 1 and 2”.
At least in the ‘Pronto 2’ case where the protagonist is a former Kosovo Democratic Party high ranked official has been a result of an interception conducted for a criminal case for which the investigation was closed.
These interceptions were never destroyed and they were leaked years later in Kosovo media causing a tectonic shift in the political scene because they included conversations about employing people on public institutions.
The Fog around the Wiretapped Parties in Kosovo
According to Kosovo Criminal Procedural Code (KCPC), wiretapping of persons under investigation is allowed only after the request of the State Prosecutor is approved by the competent Court.
The purpose of permitting wiretapping is to collect as much helpful information for the prosecution as possible in order to run a criminal investigation.
However, the KCPC has foreseen numerous measures in order to ensure that the wiretapped person’s rights are protected.
One of the fundamental rights is the right to know that they have been under wiretapping in case of the investigation results in the enclosure.
Article 96 of the KCPC foresees cases when people under secret measures should be notified.
The KCPC obliges the prosecutors to notify every person, subject to investigation, through a written notification.
Furthermore, the prosecutors are required to notify such persons of their right to exercise a civil suit in Court within 6 months from the notification day.
As such, the KCPC, amended in 2013, defines specifically the prosecution’s obligation to notify persons subject to secret measure, but it is rather uncertain that such obligation is being respected in practice.
In a conversation with some local lawyers who say that, despite their long career, they have not seen any case where the party has been informed that it is wiretapped.
While they claim to have witnessed cases when the opposite happened, the Office of the Chief State Prosecutor says that the prosecutors fulfill such obligation, but they refused to answer on the request to provide data supporting such claim.
“The Office of the Chief State Prosecutor (OCSP), within the scope of the legal authorizations, in compliance with the Law on State Prosecution, has dealt with this issue by giving it a special importance. On October 22, 2015, the OCSP has issued the Mandatory Instruction, A.nr. 422/2015, regarding the application of Article 96 of the Criminal Procedure Code (CPC) of Kosovo for the Covert Technical Measures of Surveillance and Investigation which oblige all Chief Prosecutors and Prosecutors, working in cases of Covert Technical Measures, to strictly observe the provisions of the CPC, specifically Article 96 of this Code “, Office of the Chief State Prosecutor of Kosovo says in their written answer.
Further, OCSP says that the mandatory instruction provides with disciplinary measures if such instruction is not applied.
While in the reports, they had in the collegium of prosecutors, the chief prosecutors reported that they were fulfilling their obligations.
“In the Collegium held by the Chief State Prosecutor, Aleksander Lumezi with Chief Prosecutors of Kosovo Prosecution Offices, it has been reported on the implementation of the mandatory instruction and, so far, we ascertain that prosecutors have complied with this instruction and are unaware of any non-implementation or not respecting this instruction”, reads the response of the State Chief Prosecutor’s Office.
However, on the repeated questions that have sent on January 31st and 7th of February, requesting statistic data regarding notifications for cases of wiretapping, there hasn’t been an answer by Kosovo’s Prosecution Office.
Regarding this issue, 4 out of 7 Chief prosecutors of the Basic Prosecution Office of Kosovo, the Chief Prosecutors in Prishtina, Mitrovica, Ferizaj and a prosecutor Gjakova were contacted.
Ali Uka, the prosecutor from Gjakova said that in this prosecution office in 2017 there have been two cases of secret measure and both have respected the obligation to notify the parties involved.
“In Gjakova’s Prosecution in the time period of 2017 until now there have been two cases with secret measures which haven’t resulted in suspect and the investigation was terminated. For both of these case, the parties involved were notified according to the law. There have also been other cases that resulted in indictments, in which we are not obliged to notify parties involved”, Uka said.
Prishtina’s Chief Prosecutor, Imer Beka gave similar responses but without data evidence.
Beka told that in the last two years, parties have been notified, but that wasn’t the case before. He also said that they don’t have a system for keeping data of these cases, but didn’t offer additional data to support his claim.
Nevertheless, a distance no further than 40 kilometers from Prishtina’s Prosecution, the one in Ferizaj uses a different practice.
Shukri Jashari, Chief Prosecutor in Ferizaj told that the parties involved are notified in almost every case, but according to him they do not have a record-keeping practice.
“In 99.99 percent of the cases in Ferizaj, the parties are notified. I personally notify them in all the cases that do not result in an indictment. We notify them by an official letter from the Prosecution. We do not have a system of registering the cases when we notify the parties, we only write it down in the case files, but nowhere else, we don’t have a special register”, said Jashari.
Jashari, similar to Beka said that two years ago they didn’t comply with their obligation. But what differs Ferizaj from Prishtina is that the wiretapping materials in this Prosecution are not eliminated, although required so by law.
Somewhere similar and somewhat different, the situation is also in Mitrovica. Chief Prosecutor of Mitrovica Basic Prosecution, Shyqeri Syla said that the parties are notified but also have no evidence of these type of notifications that can easily be extracted.
“I’m talking about these last two years, if it turns out not to be prosecuted, we will immediately inform the party through the announcement in the last two years. We do not have a register that records only the notices, we do not have a separate register that can be easily documented”, Syla told.
Unlike the head of the Prosecutor’s Office, two of the well-known lawyers in Kosovo have a completely different stand on the issue
The lawyer, notably known in criminal cases, Tomë Gashi said there was no case where a client was reported to have been intercepted when the investigation was over and no indictment resulted.
“In most of the high-profile cases I’ve been a lawyer of clients, there was one of the measures even tapping of calls and there were cases when they were legally intercepted and then were not charged at all but the prosecutor so far never has sent a notice that he has been legally intercepted and this has been a violation of law,” Gashi told.
Similar to lawyer Gashi, unlike the head of the Prosecution, thinks the former judge, now lawyer Florent Latifaj.
Latifaj as the Chief Prosecutor of the Basic Prosecution of Ferizaj, but contrary to it, says that in 99% of cases the parties are never informed.
Latifaj, who is Adem Grabovc’s lawyer, a former deputy and chief of the ruling party’s parliamentary group, the Democratic Party of Kosovo said his guardian had never been announced that he had been intercepted.
Grabovci, had been part of an investigation about the time he was deputy Minister of the Ministry of Transport and Communications together with Fatmir Limaj and several others regarding some tenders for road maintenance but the investigation against him had ceased after no criminal elements were found.
After seven years of trial, all other defendants were acquitted from all charges.
However, about 7 years after the investigation was closed, dozens of interceptions of conversations where Grabovci were heard discussing different jobs with different people, some of whom also in PDK, occupied the country’s media.
According to his lawyer, Florent Latifaj, Grabovci was never notified about interceptions until the Special Prosecution of Kosovo in August 2016, based on those wiretaps, launched another investigation into other criminal offenses other than those for which interception occurred.
Thus, while on the same issue, lawyers and prosecution have diametrically opposed attitudes, and there are different practices within the different Prosecution Offices of Kosovo. However, one thing is certain that until the 2015 Guidelines the parties have not been informed that they have been wiretapped.
On the other hand, prosecutors say that the parties are now being informed they do not provide data while lawyers say the opposite.
The Safety of Interlocking Materials
In addition to suspicions regarding the notification of the parties that have been intercepted and to whom the investigation has been terminated, the Prosecution and the Police do not have any control mechanisms to ensure that the materials provided during the interception are not misused by the investigators or by themselves prosecutor.
Furthermore, prosecutor offices do not have a mechanism to guarantee that the tapping materials they have requested are not misused by investigators. Regarding this issue, Pristina Chief Prosecutor Imer Beka says that the prosecutor is obliged to save the tapings, while the police officer is also responsible for the security of the tapping materials.
The same practice as in Pristina is also applied in Ferizaj. Chief Prosecutor of the Prosecution Office in Ferizaj, however, says that the possibility of misusing the tapping materials is great.
“There is no control mechanism that prosecutors have over the investigators to avoid misuse of tapping materials. Although the possibility is too great to misuse it [the tapping material], because it is done when the request for covert measures is approved, then the investigator goes to Pristina for materials where the Center is Interception and then the tapping materials are given. He is obliged to notify the prosecutor every 15 days about the course of interception and action what was happening”, Jashari told.
The issue of the security of the wiretapping materials is left, merely, at the mercy of confidence, confirms the chief prosecutor of Mitrovica, Shyqeri Syla and the prosecutor from Gjakova, Ali Uka.
“In my Prosecutor’s Office, prosecutors inform me when they have cases of interception and then they direct the investigators. There is no subsequent leak of material and they are responsible for the materials. This is a matter of mutual trust. However, to date, no interception has been made by my prosecutors. If it is otherwise, it is a disciplinary offense and they know they can lose my job” Syla said after he was if they have a control mechanism over the police investigators.
Similarly, Prosecutor Ali Uka from the Basic Prosecution in Gjakova admits that the Prosecution does not have any control mechanism on the investigators for the interception.
“We do not have any control mechanisms to follow these cases, but the same ones remain in good faith”, said Uka.
Since the Prosecution has chosen trust as a mechanism for controlling investigators to ensure that the wiretapping materials are not abused, Kosovo Police said that all their actions are made in conformity with the order of the justice authorities.
“All police actions are undertaken in accordance with legal powers and according to the order issued by the judiciary. While, if any eventual misdemeanors or potential misuse can be made, then appropriate measures will be taken according to the legal procedures of each person, without distinction”, said the Kosovo Police’s response without further details.
On the other hand, unlike Prosecutors and Kosovo Police, lawyer Tomë Gashi says that it is not rare to hear cases of misuse of interceptions.
“It is not the first time that we hear that telephone intercepts, whether legal or illegal, are misused by certain persons, or there are cases when police investigators are abusing themselves and then blackmail persons by asking for financial means or services financial or other benefits, depending on who was targeted by the tapping and these jobs are known”, Gashi told.
Thus, the Prosecution does not have any guidance or mechanism that ensures that the materials collected during the interception will not be misused. While police say they did what the justice authorities demanded, without providing any explanation of what their mechanisms are to ensure that investigators will not be able to abuse the tapping materials.
KALLXO.com, a web portal specialized to report on police issues, in June 2017 reported on the case of a businessman accused of having asked two police officers to put his wife’s number in secret to convey the phone’s incoming and outgoing phone calls why she had nothing to do with the criminal case within which she had been introduced into secret measures. In connection with this case, two police officers were charged, while KALLXO.com has no information on how the trial has ended on these persons. Much more serious than this was the case discovered in 2016 by the “Justice in Kosovo” show, which revealed how the wrapping materials had been completed as seed worms at the hands of street vendors. No one has given any responsibility regarding this case, up to date.