23 October 2013
by Bernd Borchardt, Hajredin Kuçi, Bajram Rexhepi
In February, 2010, there was a high-speed car crash on the US-Mexican border. The car that crashed was trying to escape the police, and the crash resulted in one death and one severely injured person. When he came round, authorities learned that the injured person was a Kosovar, being smuggled into the United States as part of an international people-smuggling gang.
The ring-leader of this gang was an Albanian. He charged vulnerable Albanians up to €13,000 for illegal passage to the US. But it wasn’t on a direct flight. And it wasn’t business class. No, the route was from Montenegro, to Germany, to Ecuador, before travelling into Mexico and then up to the US. It took months. And frequently Kosovars had to sit and wait in Ecuador with no money and no passport, and no possibility to be in touch with their families. They were completely reliant on the people-smugglers.
And how do we know all this? We know because Kosovo institutions – the police, the prosecutors and the judges worked hard both here and internationally to bring the perpetrators to justice. We were able to do this because Kosovo and EULEX staff worked together in mixed teams from beginning to end, to bring the perpetrators to justice.
Based on evidence from the survivor of the car crash, the ring-leader of the gang was arrested in Albania (in October 2011) and later extradited to the United States, where he entered a guilty plea. When the ring leader, Demё Nikqi, was arrested, his phone was seized and submitted for analysis. That phone provided a direct link to other persons suspected of involvement, including his brother, Bekё Nikqi. It was enough to open an investigation into all of them.
The car crash was the first piece of information used by the Kosovo Police, international and local prosecutors to start an investigation against Demё Nikqi. Further investigative actions were undertaken by the Kosovo Police and the prosecutors and, as a result, new suspects - Bekё Nikqi, Nuradin Ahmeti, Jeton Smaka and Pjetër Krasniqi - were identified. These suspects furthered their people-smuggling activities by supplying fraudulent travel documents, sending money to their counterparts in Latin American countries who would then enable entry to the United States, arranging visas for different Latin American countries and physically taking them across borders to Podgorica airport, Montenegro.
Yes, there was information – but was it evidence? After deliberation, the prosecutors decided that not only was there a case to answer, but that they could prove it from the evidence collected. That meant that they could file an indictment. An indictment is a formal procedure/document that sets out the case as the prosecutor sees it. It is the document that is assessed by a pre-trial judge. It is also the pre-trial judge who will, on the strength of the indictment, decide whether or not the case should proceed to trial.
The judge decided that there would be a trial, and it started in March 2013. The trial continued until June of this year, when four people were convicted of people smuggling. The trial made legal history in Kosovo, as three of the four defendants decided to use the new Criminal Procedure Code and enter into plea agreements with the prosecutor. The fourth defendant pleaded guilty in court. As a result of their cooperation, they were entitled to more lenient sentences.
So what do we learn from this? We learn that justice takes time; yet, it is achievable. It took three years from start to finish in this case. We learn that criminal enterprise does not recognize borders, that crime is trans-national and international. We learn that criminal activity like people-smuggling exploits vulnerable individuals, and harms families. But it also harms the image of any country, including Kosovo.
In order to progress through the Visa Liberalization process and in the overall European integration process, Kosovo needs to continue strengthening the rule of law whilst demonstrating that its citizens obey the law and seek to travel abroad only through legal means. In this regard, Kosovo has already made significant progress towards establishing a system to fight human trafficking. With its National Strategy and Action Plan against Trafficking in Human Begins, the Government of Kosovo has set clear indicators and agreeable timelines on which activities related to preventing and fighting trafficking have to be met and completed. The Strategy is continuously evaluated and progress noted. Moreover, with the legislative changes and the approval of the Law on Preventing and Combating Trafficking in Human Beings and Protecting Victims of Trafficking, Kosovo has demonstrated its determination to undertake legal measures to prevent cases like the above mentioned from happening and its readiness to assist and protect the victims in accordance with EU Directives and Standards.
We also learn that international and local prosecutors get greater results when working together in mixed teams. Even though there aren’t many international prosecutors compared to local prosecutors, working in mixed teams is now the norm. In total, there are 101 national Kosovo prosecutors and 25 international prosecutors.
We all know that corruption is a serious problem in many countries in the region, including Kosovo. There are 12 international prosecutors and 7 local prosecutors working at the Special Prosecution of the Republic of Kosovo (SPRK). We have to do more to encourage prosecutors to come forward and take on high profile corruption cases. We would take the opportunity today to call on law students in the faculties to think about becoming a prosecutor. Fighting corruption should be every citizen’s patriotic duty. In this sense, we would also call for greater cooperation from all institutions in fighting the corruption whilst encouraging the citizens to declare their concerns and put forward to the competent authorities any proof that they might have on a corruption case.
Cases that international prosecutors or police investigators are involved in are mainly concentrated on organized crime, corruption, war crimes and hate crimes. Though we already worked closely together on investigations, in 2011 we signed formal agreements to establish Joint Investigation Teams on certain cases. These are signed by high level police of both Kosovo Police and EULEX Criminal Investigation Department for several reasons, but the main one is that when EULEX is no longer here the Kosovo Police can use the same joint investigation format to have bilateral agreements with other European countries. This co-operation has increased even more after the recent signing of an agreement between Kosovo Police and EULEX on exchanging information. In addition, more and more, important cases are dealt with by Kosovo Police without EULEX involvement.
The following numbers show the big picture:
The numbers aren’t everything – some cases are more complex than others, some involve one witness, others may involve hundreds. Some may be done in a year; some may take more years. Only last week in another people smuggling case, Kosovo judges found 2 people, 1 Turkish citizen and 1 Kosovo citizen guilty of migrant smuggling. They got 7 years and 3 years respectively.
We all agree that Kosovo has shown significant progress in many areas, and a lot has already been accomplished. If we were to ask whether more can be done, we would all agree and say with one common voice that yes, there is room for improvement and there is more to be done. The good news is that Kosovo has continuously demonstrated a great willingness to cooperate and work with international partners to improve its institutions. It is clear that Kosovo rule of law institutions are not governed by EULEX; they are merely supported by them. Moreover, we all know that EULEX will not be present in Kosovo forever and its mandate will eventually come to an end. Whether further EULEX assistance is needed and in which areas it is needed is a matter to be agreed by the EU and Kosovo institutions. The most important thing is that Kosovo’s rule of law institutions are heading in the right direction.