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Law No. 05/L – 087
ON MINOR OFFENCES
The Assembly of the Republic of Kosovo,
Based on Article 65 (1) of the Constitution of the Republic of Kosovo,
LAW ON MINOR OFFENCES
Purpose and scope
1. This Law regulates the conditions for determining minor offences and sanctions on minor offences, parties and responsibility on minor offences, minor offence procedures, special procedures for juveniles and minor offence sanction execution procedure.
2. This law is harmonized with the EU directives: Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings.
Notion of a Minor offence
1. Minor offence shall be the behaviour by which there are violated or jeopardized the public order and peace as well as social values guaranteed by the Constitution of the Republic of Kosovo, the protection of which is impossible without minor offence sanctioning.
2. Minor offence sanctions can be foreseen only pursuant to this Law.
Principle of Legality
1. No person shall be convicted for a minor offence nor impose a minor offence sanction for an offence which was not defined as an offence by law or acts (municipal regulation) of the Municipal Assembly before the omission, and for which a minor offence sanction was not determined.
2. In minor offence procedure, no one can be punished more than once, for the same offence.
3. The definition of a minor offence should be accurately determined and interpretation by analogy is not allowed. In case of ambiguity, the definition of a minor offence is interpreted in the favour of the person subject to minor offence procedure.
Presumption of Innocence
No one can be convicted or sanctioned for minor offence until he/she is not found guilty by a final form decision.
Principle of enforcing more favourable law
1. The law which was in force on the moment of the omission of the offence is applied against the offender.
2. If the law in force changes after the commission of the minor offence whereas before the issuance of the final judgement on the offence, the most favourable legislation for the offender shall be applied.
3. If the new legislation does not criminalise the offence, but the offender has been convicted with a final judgement pursuant to the previous legislation, the sanctioning of the minor offence shall not be executed or shall be ceased if already started.
4. The legislation in force for the previously determined period is applied on minor offences conducted at that time and after its cessation, unless otherwise provided in that provision.
Minor offences and criminal offences
Against a minor offence perpetrator which by a final judgement on a criminal procedure, including features of a minor offence, has been found guilty, the minor offence procedure cannot be held. If the minor offence procedure has started or is in progress, than the procedure cannot continue and nor be completed.
Prescription of minor offences
1. Minor offences and sanctions on minor offences can be prescribed by law and acts (municipal regulations) of the Municipal Assembly.
2. The municipal assembly may prescribe minor offences and sanctions on minor offences only on violations of municipal body acts which they issue within the scope of their jurisdiction.
3. The body authorized to prescribe minor offences and sanctions on minor offences may not delegate this authority to other bodies.
4. If not otherwise defined by law, the provisions of minor offences on natural persons are applied to respective persons under a legal entity, and to persons exercising an independent activity.
Manner of Commission of Minor Offence
1. A minor offence may be committed by an act or an omission.
2. A minor offence is committed by an omission when the perpetrator is obliged to undertake an action but fails to carry it out.
Time and Location of Commission of Minor Offence
1. Time of commission of a minor offence is considered the time when the perpetrator has acted or ought to have acted, irrespective of when the consequence occurred.
2. The minor offence is considered to have been committed at the location where the perpetrator acted or ought to have acted, as well as at the location where the consequence has partially or entirely occurred.
Appropriate application of the criminal legislation of the Republic of Kosovo
If not otherwise provided in this Law, to the perpetrator of the minor offence is applied mutatis mutandis the provisions of the Criminal Code of the Republic of Kosovo, Juvenile Justice Code and Criminal Procedure Code.
1. Legislation on minor offences is applied to any person who commits the minor offence within the territory of the Republic of Kosovo.
2. In relation to minor offences prescribed by the municipal regulation of the Municipal Assembly, the procedure on minor offences will be held if the offence has been conducted within the territory of that local governance unit.
Minor offence procedures cannot be held against persons with Diplomatic Immunity.
MINOR OFFENCE LIABILITY
Perpetrator and Liability
1. A perpetrator is a person which by its action or omission or through another person commits a minor offence.
2. A perpetrator may be liable if he/she is mentally competent, and committed the act intentionally or negligently.
3. A person is responsible for a minor offence committed by negligence only if it is expressively determined by the law.
4. A person is not liable on a minor offence if at the time of the offence is under the age of fourteen (14) years old.
5. The Republic of Kosovo, institutions, state administration bodies, judicial and prosecutorial bodies and local self-governance units cannot be held responsible on a minor offence, whereas the respective person within these institutions is responsible on the minor offence.
Mental capacity and reduced mental capacity
1. Any person who commits a minor offence is considered mentally incompetent if, at the time of the commission of the minor offence, he/she ails from a permanent or temporary mental illness, if he/she has mental disorder or disturbance in mental development that affected his/her mental functioning so that he/she is not able to understand the nature and importance or consequences of his/her actions or omissions or was not able to control his/her actions or omissions or to understand that he/she was committing a minor offence.
2. A person who commits a minor offense is considered to have diminished mental capacity if, at the time of the commission of a minor offense, his or her ability to understand the nature and importance or consequences of his or her actions or omissions was substantially diminished because of the conditions in paragraph 1 of this Article. Such person is minor offence liable but the court shall take these conditions into consideration when deciding the duration and the type of sanction or measure of mandatory treatment it imposes.
Conducting a minor offence under the influence of alcohol
A person is responsible on a minor offence, if by using alcohol, narcotics or in any other way makes himself/herself unable of understanding the importance of his/her actions or omissions, or unable to control his/her behaviour, if prior to having brought himself/herself to this condition, his/her action or omission have been included in his intent or if he/she is negligent to the minor offence, the law provides responsibility on the commission of this minor offence by negligence.
1. A minor offence may be committed by direct or eventual intent.
2. A person acts with a direct intention when he/she is aware of its action and desires its commission.
3. A person act under eventual intent whet he/she is aware of the consequences that may be caused as a result of his/her action or omission and accepts the occurrence.
1. A minor offence may be committed by conscious or unconscious negligence.
2. A person acts with conscious negligence when he/she is aware that the prohibited consequences may be caused as a result of his/her action or omission, but vainly believes that it will not occur or that he/she is able to prevent it from occurring.
3. A person acts under unconscious negligence when he/she is unaware that the prohibited consequence may be caused as a result of his/her action or omission although under the circumstances or his/her personal abilities could be or should be aware of this possibility.
Mistake of Fact
1. A person shall not be liable for a minor offence if, at the time of commission of the minor offence, he/she was unaware of the characteristic of that minor offence or he/she mistakenly believed that circumstances existed which, had they in fact existed, would have rendered the act permissible.
2. If a person due to negligence was in mistake on the minor offence, he/she is considered responsible for the minor offence negligently committed, if such responsibility is foreseen.
Mistake of Law
1. A perpetrator shall not be responsible who, for justifiable reasons, did not know or could not have known that such minor offence was prohibited.
2. If the mistake was avoidable, the perpetrator is responsible for the minor offence, but the court may impose a more lenient sentence.
3. A mistake is considered avoidable if the perpetrator could have easily known that the minor offence was unlawful or if the perpetrator, considering his/her functions, title, occupation or duty was obliged to know that this action is unlawful.
1. If two or more persons jointly commit a minor offence or if substantially contribute to the commission of that minor offence, each of them shall be responsible and punished as prescribed for the minor offence.
2. The calculation of the sanction shall be done by the court by considering the actions or the omissions of each of the persons.
Any person who assists another by advising him/her or by putting at his/her disposal the means to commit the minor offence shall be subject to a more leaning sanction. Article 22
Whoever that intentionally incites another person to commit a minor offence shall be punished as if he/she has committed the minor offence, if that offence was committed under his/her influence.
Liability of Legal Person
1. A legal person shall be liable for a minor offence if the minor offence was committed by an act or omission of the legal person or liable person of the legal persons or by the act of allowing another person who was authorized to act on behalf of the legal person, within his/her authorization, in order to obtain a benefit for the legal person or a third person.
2. The minor offence liability of the legal person does not exclude the liability of the perpetrator of the minor offence.
Liability of the liable person of a Legal Person
1. A liable person, within the meaning of this law, is a person who has been entrusted by the legal person certain tasks and duties related to the management, business operation or work process. He/she shall be held liable for a minor offence if he/she committed a minor offence, while mentally is competent, and acted intentionally or negligently.
2. A liable person who acted upon the orders of another liable person or management body and who takes all the precautions they are obliged to undertake in order to prevent the commission of minor offence, shall not be liable for minor offence.
Liability of the natural, legal, and foreign liable person
1. Foreign natural persons, foreign legal person and liable persons of a foreign legal persons is liable on minor offences same as local natural, legal and liable person of the legal person.
2. Foreign legal persons and the liable person in relation to the minor offence committed in the territory of the Republic of Kosovo will be sentenced, if your foreign legal person has its business unit or branch in Kosovo.
Appropriate application of the Law on the Responsibility of Legal Persons for Criminal Offences
1. If not otherwise foreseen with this law, in relation to the liability of the legal persons on minor offences, shall apply mutatis mutandis the provisions of the law on the responsibility of legal persons on criminal offences, by which is regulated the following:
1.1. base and limit of liability of legal persons;
1.2. liability in case of status change and in case of bankruptcy of the legal person;
1.3. attempt of criminal offence.
MINOR OFFENCE SANCTIONS
Type, the manner of determining and imposing minor offence sanctions
1. On minor offence are foreseen the following punishments: 1.1. reprimand;
1.3. penalty points;
1.4. termination of driving licence validity;
1.5. prohibition to drive motor vehicles;
1.6. prohibition of exercising a profession, activity or duty;
1.7. expulsion of a foreigner from the country.
2. For minor offences conducted by a legal person may be foreseen only the sanctioning of the criminal offence by fees.
Conditions for imposing minor offence sanctions
1. The fine is foreseen and imposed as a main minor offence sanction.
2. The reprimand is imposed instead of a fine, in cases of lenient minor offences.
3. The prohibition of exercising a profession, activity or duty is imposed only if a fine was already imposed.
4. Termination of driving licence validity or banning vehicle driving is imposed in conjunction with a fine, reprimand or as a stand-alone sanction in cases defined by the law.
5. Expulsion of a foreigner is imposed in conjunction with a fine, reprimand or as a stand-alone sanction in cases defined by the law.
Minor offence sanctioned by fines
1. Minor offence sanctioned by fines may be foreseen in a determined or specific amount.
2. According to the law, minor offence sanctioned by fines may be prescribed in the amounts determined as follows:
2.1. fine against a natural person and the liable person of the legal persons may not be less than thirty (30) euro and not more than two-thousand (2.000) euro;
2.2. for a natural persons who carries an individual business, the fine may not be less than two hundred (200) euro and not more than five-thousand (5.000) euro;
2.3. for a legal persons the fine may not be less than five hundred (500) euro and not more than twenty thousand (20.000) euro.
3. Exceptionally from paragraph 2 of this Article, on lenient minor offences, can be prescribed the minor offence sanctioned by fine in the amount determined as follows:
3.1. for a natural person and a liable persons of a legal person, the fine may not be less than twenty (20) euro and not more than two hundred (200) euro;
3.2. for a natural person exercising an individual business, the fine may not be less than fifty (50) euro and not more than four hundred (400) euro;
3.3. for a legal persons, the fine may not be less than one-hundred and fifty (150) euro and not more than two thousand (2.000) euro.
4. According to the act of the Municipal Assembly, a sanctioned minor offence may be determined in the following amounts:
4.1. fine against a natural person and the liable person of the legal persons may not be less than thirty twenty (20) Euro and not more than one-thousand 1,000 euro;
4.2. for a natural persons whom carries an individual business, the fine may not be less than fifty (50) euro and not more than three thousand (3.000) euro;
4.3. for a legal persons the fine may not be less than one-hundred and fifty (150) euro and not more than ten thousand (10.000) euro.
5. Exceptionally from paragraph 4 of this Article, on lenient minor offences, can be prescribed the minor offence sanctioned by fine in the amount determined as follows:
5.1. for a natural person and a liable persons of a legal person, the fine may not be less than ten (10) euro and not more than hundred (100) euro;
5.2. for a natural person exercising an individual business, the fine may not be less than thirty (30) euro and not more than two hundred and fifty (250) euro;
5.3. for a legal persons, the fine may not be less than one hundred (100) euro and not more than one thousand and five hundred (1.500) euro.
6. Exceptionally from paragraph 2 of this law, on minor offences in the area of protection of health, protection of living environment, consumers protection, protection of market competition, protection of cultural goods, construction, public information, work safety and security, protection of public revenues and customs, minor offence sanctioned by fine may be doubled to the maximum foreseen in paragraph 2 of this article.
7. Exceptionally from paragraph 2 of this Article, with regard to minor offences conducted for the purpose of personal benefit by which material benefits are obtained, the perpetrator may be more severely punished, to a maximum of the double of the minor offence sanctioned by fine foreseen for that minor offence.
8. General minimum of minor offence sanctioned by fine foreseen by this Article also apply in determining minor offence sanctioned by fine for concurrent minor offences.
Time limit for payment of fines
1. On minor offence decision by which are defined the time limit for the payment of the fine, which cannot be less than fifteen (15) days and more than ninety (90) days from the date of the final judgement, whereas, when reasonable, depending from the height of the fine and the economic situation of the defendant, the body on minor offences or the court may determine the minor offence sanctioned by fine to be paid in instalments, however the payment period may not be longer than six (6) months.
2. Exceptionally from paragraph 1 of this Article, in cases foreseen by this law, may be determined for the minor offence sanctioned by fine to be paid immediately.
3. In the case of paying the fine within the deadline defined in the minor offence order, the person fined is released from paying fifty percent (50%) of the imposed fine.
4. If the perpetrator pays partially or does not pay the fine in entirety within the defined time period, against him/her shall be applied forced execution in accordance with the provisions of the Law on Enforcement Procedure. Minor offence order through which there is imposed the fine shall be deemed as an enforcement document in compliance with the provisions of the Law on Enforcement Procedure.
General rules for calculating the fine
1. The court will determine the height of the minor offence sanction to the perpetrator considering all mitigation and aggravation circumstances, particularly the severity of minor offence and consequences, the scale of responsibility, motives and circumstance under which the minor offence is conducted, background of the perpetrator, his/her personal situation and his stance after occurrence of minor offence, his/her economical situation, and other circumstances related to the personality of the perpetrator.
2. If the minor offence has been repeated, and particularly will be taken into consideration if the previous minor offence was the same type as the new minor offence, were both conducted out of the same motives and how much time has passed since the previous sanctioned minor offence.
3. Upon the calculation of the minor offence sanction, the previous minor offence sanction imposed cannot be considered as an aggravating circumstance if more than two (2) years from the day of the final judgement have past.
Punishment of concurrent minor offences
1. If a perpetrator with one or more actions commits several minor offences for which it stands trial at the same time, the court initially imposes a minor offence sanction for each minor offence, and then for all these minor offences imposes a unified punishment.
2. The court imposes the unified minor offence sanction under the following rules:
2.1. if a minor offence sanction has been determined for each concurrent minor offence, than a unified sanction will be imposed which represents a clustering of all determined fine punishments, on which occasion, the unified minor offence sanction may not exceed the maximum amount of twice of the highest punishment of a fine determined by this law;
2.2. if for concurrent minor offences is determined the sanction of penalty points, a unified minor offence sanction which corresponds with the amount of all specific penalty points, which cannot be more than twenty-five (25) penalty points.
3. Provisions for concurrent minor offences will not be applied for minor offences in continuation.
Punishment for minor offences in continuation
1. Minor offence in continuation has been committed when the perpetrator has committed several same or similar acts in time conjunction from the same perpetrator, and which represent an entirety due to the existence of at least two (2) of the following conditions:
1.1.same minor offence victims;
1.2. same object of the minor offence;
1.3. taking advantage of the same situation or the same time relationship;
1.4. same place or space of commission of the minor offence; and
1.5. same intent of the perpetrator.
2. Minor offences committed against a person may be considered minor offences in continuation only if committed against the same person.
3. Minor offences in continuation, which due to their nature cannot be concurred into one minor offence, are not considered as minor offences in continuation.
4. If the minor offence in continuation includes severe or minor forms of the same act, it is considered that the minor offence in continuation is committed in a severe form.
5. If minor offence in continuation includes minor offences with an element of money amounts, minor offence in continuation will be determined by the total amount realized with all specific minor offences.
6. A minor offence which is not included in a minor offence in continuation in the final judgement of the court, but has been later on discovered represents a special minor offence.
Minor Offences sanctioned with Penalty point
1. For minor offences on traffic road safety, according to the law are foreseen penalty points from one (1) to nine (9) points.
2. The minor offence sanction from paragraph 1 of this Article is imposed pursuant to the conditions foreseen with this law, if not otherwise regulated with another law.
3. A penalty point punishment can be imposed upon a motor vehicle driver if in the time of the minor offence he/she possesses a valid driver license issued in the Republic of Kosovo or to a driver of the motor vehicle to which by a final judgement has been prohibited to operate a motor vehicle.
Mitigation of a minor offence sanction
1. If upon the determination of the minor offence sanction is concluded that the minor offence has not caused serious consequences, and that there are mitigation circumstances which point out that a more lenient minor offence sanction may achieve the purpose of the sentence, than the sanction imposed may be mitigated in one of the following manners:
1.1. impose a minor offence sanction below the minimum sanction determined for that minor offence, but not under the minimum legal measure for that type of punishment.
Suspension of the minor offence procedure if the damage is compensated
The court may suspend, or not initiate the minor offence proceeding on a perpetrator against which is foreseen a fine, if the perpetrator voluntarily after commission of minor offence and before or during the commencement of the minor offence procedure has removed the unlawful situation or has compensated the damage caused by the minor offence.
Type of protection measures
1. Protective measures which may be foreseen only by the law are as follows:
1.1.confiscation of items;
1.2.prohibition of exercising the profession, activity, responsibility or duty.
2. Protective measures from paragraph 1, sub-paragraph 1.1 and 1.2 of this Article, under the conditions foreseen with this law, may be imposed even if not determined for minor offences.
3. Protective measures from paragraph 1, sub-paragraph 1.1 and 1.2 of this Article may be imposed even if the minor offence sanction is not imposed, but when such possibility is foreseen by the law.
SPECIAL MEASURES ON MINOR OFFENCES
Confiscation of assets and property gains and sequestration of the object
1. Objects that are used or were indented to be used for carrying out the minor offence, or were which emerge from the minor offence shall be sequestrated if they are property of the perpetrator.
2.Objects from paragraph 1 of this Article may be sequestrated even if they are not property of the perpetrator or not in possession of the legal entity if so required by the interest of general security, safeguarding human life and health, safety of transport of goods or public moral, as well as other cases as determined by the law.
3. The body rendering a decision on the minor offences shall determine whether the objects sequestrated shall be destroyed, soled, or be handed over to the interested body or person.
4. The sequestration shall not hamper the right of a third party compensation for the damage done by the perpetrator.
5. From the perpetrator shall be sequestrated money, valuable objects and any other property gain acquired by means of a minor offence. If sequestration is not possible, the perpetrator shall be obliged to pay the amount in money which corresponds with the property gain.
6. If the person convicted does not, within the time limit, pay the amount in money determined in paragraph 5 of this Article, forced collection shall be applied. Properties gained through a minor offence may be taken away from persons to whom such property was transferred to, without or with compensation that does not correspond to the real value, if they knew or ought to have known that the property gain was acquired by means of a minor offence
7. When property gain is transferred to relatives of the perpetrator, such property shall be taken away if they fail to prove that they compensated the real value.
Confiscation of asset and property gains
1. Objects used or intended to commit the minor offence or created by the minor offence can be confiscated if owned by the perpetrator.
2. Objects from paragraph 1 of this Article may be confiscated even if not owned by the perpetrator, if this is required for the reasons of protecting general security, human health or property, ethical reasons or where the risk of being used for a minor offence still exists, but in that manner the rights of third parties are not violated on the compensation of the damage from the perpetrator.
3. The court which has issued the decision, in accordance with special provisions will determine whether the objects confiscated will be destroyed, sold or submitted to the authority respectively to the interested organization.
Deportation of a foreign person from the territory of the Republic of Kosovo
1. The measure of deportation of a foreign person from the territory of the Republic of Kosovo may be imposed to a foreign person who is convicted of a minor offence due to which his/her further residence in the Republic of Kosovo is in contradiction with the Law on Foreigners.
2. Protective measures from paragraph 1 of this Article may be imposed in duration of six (6) months to three (3) years. The duration of the measure starts from the date when the decision on the minor offence has become final.
DATA FROM THE MINOR OFFENCE RECORDS
Minor Offence Records
1. Minor offence records contain the following data:
1.1. personal data of the perpetrator;
1.2. data of the minor offence;
1.3. data on sanctions and data on legal consequences of the minor offence sanction, subsequent changes on the data contained in the records.
2. Records from paragraph 1 of this Article shall be held in electronic form. 3. Data from the minor offence record may be issued to:
3.1. court, state prosecutor and authorized claim submitter, if related to the minor offence procedure of the perpetrator whose data are requested, and the guardianship body or other competent body when this is necessary for carrying out his/her competences;
3.2. other bodies, trade associations and other legal persons upon a reasoned requests, if the legal consequences of the minor offence sanction still continue to exist and if a reasonable interest based on the law exists.
4. The competent body on police affairs may use the records of minor offences within its legal authorization, with the aim of discovering the perpetrators of the minor offence. The highlighted data are considered an official secret.
5. A citizen upon his/her request will be provided with the data on his/her on a minor offence sanction.
6. No person is obligated to present proves on whether he/she is or is not convicted in a minor offence.
7. The records on minor offence imposed by the Courts shall be kept by Kosovo Judicial Council. The manner of keeping shall be determined with sub-legal act by Kosovo Judicial Council.
Statutory limitations of the minor offence proceeding
1. Proceedings for a minor offence shall not be commenced if one (1) year has passed from the date when such minor offence was committed.
2. The statutory limitation of the indictment shall not commence during the period in which indictment according to the law cannot be undertaken.
3. The statutory limitation shall be interrupted by any action of the competent body related to the prosecution of the perpetrator.
4. After every interruption, the statutory limitation shall recommence, however prescription shall be effective when two (2) years have passed from the date when a minor offence was committed.
5. According to the law, on certain minor offences may be determined longer periods of statutory limitations than those provided in paragraph 1 of this Article, but not longer than five (5) years.
Statutory limitation of execution
1. A sanction rendered for a minor offence cannot be executed if one (1) years has passed from the date when the decision on the minor offence has become final.
2. The statutory limitation of the execution of the minor offence commences from the day when the decision on the minor offence becomes final.
3. The statutory limitation shall not run during the time when, according to the law, execution cannot be undertaken.
4. The statutory limitation shall be interrupted by any action of the competent body to execute the minor offence sanction.
5. After each interruption, the statutory limitation shall recommence.
6. The minor offence sanction shall be subject to statutory limitation in any case when it exceeds twice the period which according to the law is requested for the prescription of execution.
7. According to the law, on certain minor offences may be determined longer periods of statutory limitations for prosecution of the minor offence and execution of minor offence, or protective measures respectively.
Types of educational measures
1. For juveniles whom at the time of committing the minor offence reached the age of fourteen (14) years old, the following educational measures may be imposed:
1.1. reprimand; and
1.2. additional supervision by the parents, guardian, or the custody body.
2. Educational measures of additional supervision are imposed on minors, if it is necessary to undertake permanent measures of education and improvement. This measure can last, at the most, until he/she reaches adulthood.
3. Prior to imposing the educational measure on a minor, the opinion of the competent body shall be obtained.
4. If a juvenile reaches the age of adulthood prior to the rendering of a decision on the minor offence, in that case educational measures shall not be imposed, whereas if the juvenile becomes of age after the rendering a decision on minor offences, then the educational measure shall be executed.
Appropriate application of the legislation on juvenile minor offence
For juvenile perpetrators, shall be used the legal-material provisions of this law, unless otherwise provided with the provisions of this chapter.
MINOR OFFENCE PROCEDURE
The purpose of general provisions
1. By general provisions of this law is enabled a fair proceeding of minor offence procedure, protection of human rights, the right and complete conclusion of facts and lawful liability for the minor offence, hence, no innocent person is judged, while the sanction, or other minor offence sanctions shall be imposed to the perpetrator.
2. Before issuing a final decision on minor offence, the defendant may be limited to realization of freedoms and rights only under the conditions foreseen by this law.
3. If this law does not regulate certain issues of minor offence proceedings, provisions of the Criminal Procedure Code shall apply accordingly on these issues.
1. Proofs are collected, in compliance with the law.
2. The minor offence burden of proving and liability remains under the claimant for commencing the minor offence proceeding.
3. The Court renders the proofs upon parties' proposal. A party must submit the proposed proofs.
4. The Court may, ex officio, administer the proofs in favour of the defendant if he/she is not able to do so himself/herself or if it is justified by reasons of expediency and efficiency of proceedings.
The right in defence, access in documents and translation
1. Before making decision on a minor offence, the defendant shall be given the possibility to declare him/herself on the charges.
2. If a duly summoned offender does not appear for questioning and does not justify his/her absence, and his/her questioning is not necessary for establishment of important facts for making a legal decision, the decision on the offence can be made without the questioning of the defendant.
3. The defendant has the right to defend himself or with assistance of a professional counsel which he/she chose. Upon first hearing of the defendant, the court shall instruct the defendant in writing or verbally to the following procedural rights: the right to defence, free legal aid, the right to be informed on minor offence violation immediately and to the extent that the integrity of the process and effective enforcement of the right in defence, right to translation and interpretation, and the right to be defended in silence is ensured. The court must immediately inform the defendant of any changes regarding the information that the defendant has previously received.
4. For a defendant who has no procedural skills, the legal representative shall take actions upon proceedings.
5. The court must ensure in advance that the defendant understands the language in which the proceeding is being conducted.
6. The defendant is entitled, during minor offence procedure, to use its own language, namely to be provided with a quality translation in a language he/she understand. If necessary, in order to ensure smooth proceedings, translation must be provided in communication also between the defendant and its legal representative.
7. In order to ensure the right in defence and proper proceeding, the Court must provide the defendant with qualitative written translation in the language he/she understands of all essential decisions taken upon minor offence proceedings, including judgments. In all other cases, the Court discretionally assesses the translation of other decisions. The defendant or its legal representative may submit a grounded request for translation of any decision which they consider necessary.
8. There should be no obligation for the Court to provide translation of the paragraphs of the decision that are not relevant and do not harm the defendant. In certain cases the translation of this paragraph may be provided verbally, provided it does not interfere to the integrity of the process.
9. If the defendant is deaf or mute, the same shall be provided adequate assistance from the Court, in order to understand the proceeding.
10. Services under paragraph 6, 7 and 8 of this Article may be provided through information technology, unless when the physical presence of the translator or interpreter is necessary for proper proceeding.
11. The defendant may waive his rights set forth in paragraph 6 and 7, provided that the waiver shall be in writing, voluntarily and after being previously informed on his/her rights and the consequences of this action.
12. Translation costs shall not be attributed to the defendants who does not know or does not speak the minor offence proceeding language.
13. For the translation actions taken for the minor offence procedure, the translator is obliged to keep confidentiality.
14. Actions taken by this Article are entered into the record.
15. If not otherwise provided in this Law, regarding the rights of the defendant in minor offences procedure the Criminal Procedure Code relevant provisions are applied mutatis mutandis.
Impartial evaluation of proves
1. The court for minor offences shall evaluate proves according to its discretionary right. Which facts shall be taken as proved shall be decided by the organ which leads the minor offences procedure based on conscientious and careful estimation of each prove individually and all proves as a whole, as well as based on results of the entire procedure.
2. The Court's decision cannot be based on facts which are rendered in violation of human rights and freedoms guaranteed by the Constitution or recognised international agreements.
Minor offence proceedings efficiency
The minor offences procedure shall be conducted briefly and quickly, but it should not affect the regularity and legality of the decision making.
The principle of truth
The minor offence court shall truly and fully establish facts which are of importance for making a lawful and fair decision on the minor offence. With the same attention it shall examine and verify both circumstances which are in favour and against an offender.
Prohibition of repeated trial
1. No one can be judged again for a minor offence on which is judged or released with a final decision.
2. The prohibition in paragraph 1 of this Article does not prevent the repetition of the minor offence proceedings in accordance with this law.
3. The person in criminal proceedings which by a final decision has been convicted of a criminal offence which has elements of a minor offence shall not be punished for the minor offence.
Guidance for the uninformed party
The defendant or other person who participates in a minor offence proceeding, in due to lack of knowledge may not take any action or due to this that does not use its rights, the court shall instruct on the rights that belong to, under this law, and the consequences of not taking the action.
Dual minor offence proceedings instances
Against a decision issued in the first instance, it may be submitted an appeal, if not specified otherwise in this law.
JURISDICTION AND DISQUALIFICATION
Subject matter jurisdiction and the composition of the court
1. The court shall judge within the limits of its subject matter jurisdiction provided by the law.
2. An individual judge shall lead the minor offence procedure at first instance.
3. The second instance court shall take a decision in a panel comprised of three (3) judges.
4. On certain minor offences determined under the Law or Regulation of the Municipal Assembly, the minor offence proceeding may be held, and minor offence sanctions may be imposed, by the state administration body, or the body holding a public authorization (hereinafter: the body on minor offence) to supervise the implementation of the law, which foresees minor offences.
5. Judicial protection is guaranteed against a final decision on minor offence rendered by bodies foreseen under paragraph 4 of this Article.
Competencies of the body on minor offence
1. The body on minor offence shall carry-out the minor offence proceeding, if the law provides for exclusive competences on such proceedings.
2. Notwithstanding paragraph 1 of this Article, the body on minor offence is competent to act on all minor offences for which:
2.1.is foreseen the sanction by fine in the defined amount;
2.2.is foreseen a fine up to five hundred (500) Euro against a natural person;
2.3.is foreseen a fine up to one thousand (1000) Euro against a legal person; and
2.4.is foreseen the imposing of a fine at the site.
Conflict of competences
In case of a conflict of competences between the courts and the bodies on minor offences, the court shall be competent to decide pursuant to administrative conflicts.
With regard to minor offences, and imposing minor offence sanction, shall be the court who decides, respectively the body on minor offence by means of a decision, against which all legal remedies defined under this law, are allowed.
Expenditures of the proceeding
Expenditures of the proceeding are the expenditures which are caused in the minor offence proceeding or due to such proceeding, as well as expenditures which are incurred related to the provision of necessary proves and safeguarding of sequestrated and confiscated objects before the commencement of the proceeding.
MINOR OFFENCE PROCEEDING BEFORE THE BODY ON MINOR OFFENCE
Authorization to conduct the proceedings
1. In case the party submits the objection against minor offence sanction, the proceeding before a body on minor offence shall be conducted by the committee for deciding composed of at least three (3) members. The submission of the objection should be conducted within eight (8) days and the same shall delay the execution for payment of the fine in compliance with the provisions of this Law.
2. Members of the committee from paragraph 1 of this Article shall be officials bearing an authorization with a respective grade of professional preparation and necessary work experience, whereby at least one of the members shall be a graduated lawyer who passed the bar exam.
Minor offence proceeding
1. The body on minor offence shall conduct the minor offence proceeding ex-officio, upon the request by an authorized official or upon the request by the authorized body from Article 86 of this Law, or based on a claim submitted by injured party (hereinafter: the claimant)
2. The claim for conducting a minor offence proceeding shall contain all data determined under Article 87 of this Law.
3. The claim shall be filed before the competent body on minor offence. If the request is filed before another body, than the later shall forward the claim to the competent body on minor offences and inform the submitter of such action.
Decision based on the claim for conducting a minor offence proceeding
1. The body on minor offence following the confirmation of conditions for developing the proceeding ex-officio, respectively the request from Article 86 of this Law, shall additionally administer information and evidences on the minor offence.
2. If the body on minor offence proves that there are legal conditions to continue with the minor offence proceeding, the same is obligated to render and implement a decision on minor offences.
3. If a proceeding is not under the competencies of the body on minor offence, the same is obligated to present a request before the competent court requesting to conduct the proceeding.
4. The body on minor offence shall not render a decision, respectively shall not file a request with the competent court for developing the proceeding, if it proves that the conditions set in Article 56 paragraph 2 of this Law have been met.
5. Decisions from paragraph 4 of this Article and the reasons shall be written within the request.
6. The body on minor offence is obligated that within a time limit of thirty (30) days to inform the submitter with regard to the Ruling not to render the decision on minor offence, or respectively to not file the request for continuing the proceeding before the competent court, as well as the reasons of such a decision.
Appropriate implementation of the provisions of the Law on Administrative Procedure
The body on minor offence shall, upon the development of minor offence proceeding, appropriately implement the provisions of the Law on Administrative Procedure, unless otherwise provided by this Law and the Law by which there is foreseen the minor offence.
The right for an administrative conflict
1. Against the final decision on minor offences rendered by the body on minor offence a claim may be filed for conducting an administrative dispute. The claim may be filed by a person (natural or legal) against whom a sanction has been imposed, his legal representative, respectively the counsellor, the injured party and the owner of the object confiscated/sequestrated as well as minor offence proceeding.
2. The claim from paragraph 1 of this Article delays the execution of a decision for payment of a fine, unless if the fine imposed by a decision, and the costs of the proceeding in general to the natural person do not exceed one hundred (100) euro, or for the responsible person within the legal entity, the official person or individual business five hundred (500) Euro, and for the legal entity one thousand (1000) Euro.
3. Upon the proposal of the claimant presented together with the claim before the Court which shall have subject-matter jurisdiction to decide on the administrative dispute, the same with a preliminary injunction shall impede the execution of the decision from paragraph 2 of this Article, until its finalizations, if the claimant manages to prove that due to the execution of the decision he/she will endure irreparable damage.
4. The competent court to decide on the administrative dispute shall perform the judicial protection procedure according to the Law on Administrative Disputes.
The deadline for filing a claim, and competency
1. The Claim from the previous Article of this law shall be filed in a time limit of thirty (30) days from the day of submitting the decision on minor offences.
2. The competent court shall be responsible to decide on administrative conflicts, based on the claims.
Reasons for filing a claim
1. Decision of the body on minor offence may be contested by a complaint:
1.1 if the decision violated the material provisions of the law which foresees the minor offence.
1.2 if the provisions of the proceeding have been breached because it was not the competent body who decided, or if the decision does not contain all elements foreseen.
1.3 due to erroneous and incomplete determination of the factual situation, whereby in the claim cannot be stated new facts and propose new evidences, and if the claimant, without his fault, cannot propose them in the proceeding.
1.4 due to imposed sanctions, confiscated assets, and the expenditures of the proceeding.
The judge who takes part in the proceedings will be disqualified ex officio or at the request of the parties, defence counsel or injured party, when there is any grounds for disqualification.
Regarding territorial jurisdiction, concurrence or separation of a minor offence procedure, transfer of territorial jurisdiction, evaluation of jurisdiction and conflict, disqualification, and other issues related to it, mutatis mutandis provisions of the Criminal Procedure Code shall apply, if not specified otherwise by this law.
THE DEFENDANT AND THE INJURED PARTY IN A PROCEDUREAT THE COURT
The defendant and its rights
1. The defendant is a person against whom the minor offence procedure is conducted.
2. The defendant shall be entitled to present proofs, make proposals, and use legal remedies provided by this law.
3. The defendant shall be entitled to defend himself/herself or by the assistance of defence counsel.
4. As defence counsel may be engaged a lawyer, the later may be replaced by the practitioner.
5. For a defendant who has no procedural capabilities, actions in proceedings shall be taken by the legal representative.
6. Defence counsel is authorized to take all actions, in favour of the defendant, that the defendant may take on his/her own.
7. Defence counsel is obliged to submit the proxy to the court or the body, before whom is taking place the minor offence proceeding. The defendant may give a verbal proxy to defence counsel in record (minutes).
8. The rights and duties of defence counsel cease when he/she waives the authorization or when the defendant revokes the authorization.
The representative of the accused legal person
1. A representative of the accused legal person participates in a minor offence proceeding, who is authorized to take all actions on behalf of the accused legal person.
2. Representative of an accused legal person is the person who is authorized to represent the legal person under the law or other acts.
3. The representative of an accused legal person, from paragraph 2 of this Article, shall have the written authorization of the body which appointed as a representative.
4. One person may represent the accused legal person.
5. The accused legal person and the liable person accused, each of them may have its defence counsel or may have the same defence counsel. The defence counsel of a legal person and of the person responsible for that legal person may not be the same person which in the minor offence procedure was a representative of the legal person.
The representative of a foreign accused legal person
1. If not otherwise specified in a provision by which the minor offence is provided, the foreign legal person and the foreign liable person will be punished for an offence if the offence is carried out in the territory of the Republic of Kosovo and if the foreign legal person has a business unit in the territory the Republic of Kosovo.
2. The representative of the foreign accused legal person is a person who manages the subsidiary or other business unit of that legal person in the Republic of Kosovo, if as the representative is not appointed another person.
The person that cannot be the representative of the legal person
1. Representative of a legal person cannot be a person who:
1.1. is a witness in the same matter;
1.2. liable person against who is being initiated the procedure on the same minor offence, unless he/she declares that he acted under the command of another person or responsible management body.
2. In the cases of paragraph 1 of this Article the judge is obliged to inform the legal person, in order that within eight (8) days to appoint a new representative.
3. If the accused legal person has not appointed another representative in the timeframe specified in paragraph 2 of this Article, shall be punished with a fine up to five hundred (500) euro. If even after punishment the legal person fails to appoint its own representative, for any other non-response regarding the appointment of the representative, shall be punished with a fine up to one thousand (1000) euro.
The injured party
1. In terms of this law, the injured person is the person who’s personal or property rights are violated or threatened by the minor offence.
2. The injured party is entitled that itself or through a legal or authorized representative to:
2.1. submit and present the claim for initiation of minor offence proceedings;
2.2. present evidence, make proposals and exercise the legal property claim for compensation of damages or the return of the item;
2.3. submit an appeal against the decision regarding its claim for initiation of minor offence proceedings;
2.4. present evidence based on which the court may prohibit the defendant, during the proceeding, to approach the damaged object or the place where the minor offence is committed.
RESTITUTIO IN INTEGRUM
Deadline for Restitutio in Integrum
1. The defendants or authorized claimants for setting up the minor offence procedure, which for reasonable cause fails to submit an appeal against the decision on the minor offence within the provided deadline, shall be permitted to restitutio in integrum, if within three (3) days from the date of cessation of the cause for why the deadline was issued, submits a claim for Restitutio in Integrum, and if at the same time together with the claim submits the appeal.
2. After the expiry of one (1) month from the date of the issued deadline, restitutio in integrum cannot be required.
3. Request for the restitutio in integrum shall be submitted to the same court to which is filed the appeal.
4. Request for the restitutio in integrum does not stop the execution of the decision on minor offence, but the competent body for deciding upon the claim may decide accordingly to postpone the execution until a decision on the request is taken.
Decision for Restitutio in Integrum
1. The competent court decides for restitutio in integrum on the decision that is appealed. 2. Appealing is not allowed against the decision granting the restitution in integrum.
COSTS OF MINOR OFFENCE PROCEEDINGS AND LEGAL PROPERTY CLAIM
The provisions of the Criminal Procedure Code for the proceedings costs and costs for the legal property claims shall apply accordingly in the minor offence proceedings.
DECISIONS RENDERING AND COMMUNICATION
Types and communication of decisions
1. The court shall render its decisions in minor offence proceedings in the form of:
1.2. Ruling; and
2. Decisions, duly, are communicated immediately after, unless otherwise specified in this law.
3. The decision, which was communicated, should be drafted in writing within eight (8) days from the day of verbal communication, whereas the decision is send immediately, if execution is prescribed before taking a final decision.
4. The decision shall be verbally communicated to the persons if present, whereas in their absence they shall sent a verified copy.
5. When the decision is verbally communicated, it will be noted in the minutes, and the person to whom the communication is made to, will prove this with his/her signature.
6. At the request of the person concerned will be provided a written copy of the decision verbally communicated. When the person concerned requires a copy of the decision, the time to appeal is calculated from the date of sending the verified copy of the decision.
Decisions of the second instance Court
1. Panel`s decisions are taken after a verbal discussion and voting. The decision is taken when the majority of panel members have voted.
2. The panel chair leads the discussion and the voting and he/she votes last. He/she is obliged to ensure that all issues are reviewed comprehensively and completely.
3. Panel members may not refuse to vote on issues presented by the chairman of the panel, but panel member who voted to suspend the procedure of the minor offence and has remained in the minority is not required to vote on punishment, and if it does not vote it will be considered as agreed with a vote which is more favourable to the defendant.
4. When votes on any individual issue for which there should be voted are divided into several different opinions, so that neither one of them has the majority, the issues shall be separated, whereas the voting shall be repeated until majority of votes is achieved. If even in this manner the majority of votes is not achieved, the decision will be taken in such a way that the votes that are more unfavourable to the defendant will be counted with the votes that are less favourable than these, always, until necessary majority of votes is reached.
5. During the discussion and voting can be present only members of college and record holder.
SUBMISSION OF WRITTEN NOTES
1. Written notes are delivered either through post office or through other authorized services for submission, through the Court competent official, through some other organs, or directly to the court premises. Submission can be done in electronic form, in accordance with the specific provisions.
2. Summons for investigation or questioning, i.e. for giving a written statement, as well as all decisions for which the appeal deadline commences upon submission, shall be delivered personally to the defendant. In the same way are delivered the decisions to the defendant for whom the appeal deadline commences upon submission.
3. Submission of written notes is conducted on working day in the workplace or business premises during working hours, or at the residence from eight (8) am up to twenty-two (22)pm or at the court when the person to whom it shall be delivered the notification is found there, or when the court call`s him/her for submission.
4. If a person to whom a written note must be delivered is not found there where the delivery should be done, the deliverer shall leave the written note, with one of the persons mentioned in Article 80 of this Law, which says that he/she should be on certain day and hour in his/her apartment, that is his/her work place for receiving the notification. If even after this the deliverer does not find the person to whom the delivery should be done, then it shall be acted according to the provision of Article 80, paragraph 1 of this Law, and thereby it is considered that the delivery is done.
5. Decisions and other letters sent to the state organs shall be delivered by handing over to the clerk’s office.
6. Delivery of written notes to legal persons is done by submitting them to the person authorized for receiving notifications or other person who works for a legal person.
7. In case of delivery of decisions whose appeal deadlines commences upon submission date, as the day of delivery shall be considered the day of handing over to the clerk’s office, i.e. to the person mentioned in paragraph 6 of this Article.
Obligatory personal delivery
1. Written notes which are not indicated in Article 79 paragraph 2 of this Law shall be delivered personally, but in case a recipient is not found in his/her apartment, such letters can be handed over to some of his/her adult members of his/her family. If they are not found in their apartment, the written notes shall be handed over to a neighbour, if he/she agrees to it. If the delivery is done at the work place, and if a person to whom the letter shall be delivered is not found there, the delivery can be done to a person who is employed in the same work place, if he/she accepts to receive the written notes.
2. If it is found that the person to whom the letter should be delivered is absent and because of that the persons from paragraph 1 of this article cannot deliver the written note on time, then the written note shall be sent back, indicating where the absent person is.
Delivery to the defence counsel
1. If a defendant has a defence counsel, then delivery of the decisions whose appeal deadline commences upon submission, shall be done to the defence counsel, and if there is more than one, than delivery should be made to only one of them.
2. If the injured party has a legal representative, or a proxy representative, delivery of the decision from paragraph 1 of this Article shall be done to him/her, and if there is more than one, than delivery should be made to only one of them.
1. A receipt on delivery (delivery note) shall be signed by a recipient and deliverer. The recipient shall by him/herself indicate the date of reception on the delivery note. The day and month of reception shall be written in the notification.
2. If a recipient is illiterate or is unable to sign him/herself, then his/her name shall be undersigned by the deliverer, who in that case should indicate at the delivery note the reason for undersigning the recipient.
3. If a recipient refuses to undersign the delivery note, the deliverer shall indicate that on the delivery note and mark the day of delivery, therewith it is considered that the delivery is done.
Refusal of reception
When a recipient or an adult person of his/her family, refuses to receive the written notes, as in case of Article 80 of this Law, the deliverer shall mark the day, hour and reason of refusal of reception in the delivery note, or he/she shall leave the written notes in the apartment of the recipient or in the office where he/she is employed, and thereby it shall be considered that the delivery is done.
Special cases of delivery
1. Summons to the members of Kosovo Security Forces, Kosovo Police officers, road and air traffic workers shall be delivered through their commands, i.e. direct commanders and, if necessary, other written notes can also be delivered in this way.
2. Delivery to persons deprived of liberty shall be done through administration of the institution in which they are situated.
3. Persons who are entitled to immunity in the Republic of Kosovo, if not provided otherwise by an international agreement, the written notes shall be delivered via the competent Ministry of Foreign Affairs.
4. Citizens of the Republic of Kosovo in another country, the notification shall be delivered through diplomatic or consular representations of the Republic of Kosovo, provided that the other state does not reject such manner of delivery and the person to whom is submitted, voluntarily agrees to accept the notification. Authorized officer or employee of a diplomatic or consular representation sign the delivery note as the deliverer, if the written note is delivered to the representation, whereas if the notification is sent by post, it confirms it in the delivery note.
For cases not provided for, by this law, the delivery shall take place accordingly to the provisions of the Law on contested procedure.
INITIATION AND COURSE OF AN OFFENCE PROCEDURE
Submission of Claims
1. The minor offence proceeding commences based on a claim filed, whereby it is requested to commence the minor offence proceeding.
2. The claim requesting the commencement of the minor offence proceeding may be submitted by the competent bodies as well as the injured party.
Content of the claim
1. A claim for commencing the minor offence proceeding shall be submitted in written form and it should contain:
1.1. basic data of the defendant (first and last name, first and last name of one of his/her parents, place and date of birth, place of residence and employment, present address and occupation), i.e. name and seat of an accused legal person, whereas for the liable person in the legal entity, the function that he/she exercises in that legal entity;
1.2. factual description of actions indicating legal features of a minor offence, time and place of execution of the minor offence and other circumstances which are necessary for the minor offence to be more closely determined;
1.3. legal qualification of the minor offence;
1.4. proposal regarding evidences which should be administered.
2. If the claim for commencing minor offence procedure does not contain data from paragraph 1 of this Article, it shall be returned to the claimant to remove the deficiencies within the deadline. If the claimant does not remedy the deficiencies within the prescribed period shall be deemed to have waived from this request and the same will be rejected by decision.
3. Deadline by paragraph 2 of this Article may not be longer than fifteen (15) days.
4. The claim for commencing minor offence procedure which is submitted by the injured party must contain the first and last name and address of the residence of the defendant, and the amount of damage that is caused.
Initiation of the procedure
When a competent judge for minor offences receives the claim for initiation of an offence proceeding, he/she shall investigate whether there are sufficient conditions to initiate the minor offence proceeding, and on this regard will take a decision.
Rejection of the claim
1. A claim for commencing minor offence proceeding shall be rejected by a decision, if it is ascertained that there are no conditions for initiation of an offence procedure as follows:
1.1. when action which is described in the claim does not constitute a minor offence,;
1.2. when there are grounds which exclude responsibility for the minor offence;
1.3. when is caused the statutory limitation for initiation of the minor offence procedure;
1.4. when a request is submitted by an unauthorized body, i.e. non authorised person;
1.5. when are created some other legal grounds due to which a minor offence proceeding cannot be initiated.
2. The decision from paragraph 1 of this Article shall be submitted to the claimant, whereas the injured party will be informed that he/she may realize his/her legal property claim in a civilian dispute.
3. The claimant has the right of appealing the decision according to paragraph 2 of this Article, in a deadline of eight (8) days from the moment of delivery of the decision.
4. The Claim for commencing the minor offence proceeding shall be rejected by a decision if concluded that there are no conditions to commence the minor offence proceeding, when:
4.1. the action described in the claim does not consist a minor offence;
4.2. there are grounds which exclude responsibility on the minor offence;
4.3. the commencement of the proceeding is subject to statutory limitation;
4.4.the claim was filed by an unauthorized body or person respectively;
4.5.there are other legal conditions created, due to which the proceeding cannot commence.
5. The decision from paragraph 4 of this Article shall be submitted to the claimant, whereas the injured party will be notified that he/she can realize his/her material request in civil dispute.
6. If the judge does not reject the claim for commencing minor offence procedure, will take a decision to commence the minor offence procedure.
7. The decision to commence minor offence procedure is not sent to the claimant nor the defendant.
8. Appealing against the decision from paragraph 7 of this Article is not allowed.
Suspension of a minor offence procedure
1. The judge conducting minor offence procedure shall suspend the procedure by decision, if:
1.1. the place of residence of the defendant is unknown, or if he/she has escaped, or otherwise is not accessible for the state organs, or if he/she is abroad during the certain time;
1.2. if the defendant is temporarily mentally ill, or temporarily has mental disturbance.
2. Before suspension of the procedure, all available evidence shall be collected on the minor offence and responsibility of the defendant.
3. The suspended procedure shall be continued when there are no more obstacles which caused its suspension.
4. The claimant and the injured party shall be informed upon suspension and continuation of the procedure.
Measures to ensure the presence of defendant
1. Measures which can be undertaken toward a defendant to ensure his/her presence and to successfully conduct the minor offence procedure are as follows:
Summoning the Defendant
1. The presence of the defendant in the minor offence proceedings shall be ensured by serving a summon to him/her.
2. Summon is made by serving a summons from the court that contains:
2.1. court name;
2.2. first and last name of the Defendant;
2.3.the designation of the minor offence with which he/ she is charged;
2.4. the place, day and hour at which he/she shall appear;
2.5. a note that he/she is being summoned in the capacity of the defendant; and
2.6. the official stamp and signature of the judge.
3. In summon by which is summoned will be noted that a person must come to be questioned or he/she may provide his/her defence in written.
4. When the defendant is summoned to come personally because it is necessary to question him/her, in summon will be warned that in case of not responding to this summon, the Defendant will be brought at the Court by force.
5. If presence of the defendant is not necessary for determining the responsibility in minor offences procedure, in summon it shall be warned that for minor offence, in case of non-presence, the decision will be brought without questioning him/her.
6. The provisions of this Article shall apply accordingly to the representative of the legal person as well.
1. A person shall be summoned as a witness if there is likelihood that he/she may give information about the minor offence, the accused and important circumstances.
2. The convicted person may be questioned as witnesses.
3. Any person summoned as a witness has a duty to respond to the summon and, unless otherwise provided for by this law, is obliged to testify.
4. Witness summoning is done by sending a written summons in which will be noted the first and last name and occupation of the witness, time and place of arrival, the minor offence and the case in which he/she is summoned, the note that he/she is called as a witness and the warning for unreasonable absence.
5. Witnesses who because of old age, illness or serious body disabilities cannot respond to the summons, he/she may be questioned at his/her own residence or where he/she is.
6. If the injured party is summoned as a witness, this shall be noted in the summon. 7. If the summoning is made verbally it will be noted in the written note.
1. When a duly summoned person fails to respond to the summon and does not justify his absence, will be ordered to appear if his/her presence is necessary.
2. Defendants compelling may be ordered only if in the summon was noted that he/she will be brought by force if he/she fails to respond to the summon.
3. Compelling of the defendant may be conducted without a prior summon if the person was caught while committing the minor offence and cannot argue his/her identity or his/her residence, or by going abroad he/she can avoid responsibility of minor offence or in order to prevent committing further offences.
4. If a duly summoned representative of accused legal person does not respond to the summon, and does not justify his/her absence, a compelling order will be brought against him/her.
5. A compel order of the injured party might be ordered only if called as a witness.
6. Persons referred to in paragraph 3 of this Article might be brought by the police officials without a judge's order.
7. A compel order will not be pursued against military persons, police officers or correctional officers but it will be requested from their command, respectively, their institution to bring them.
8. Cost of compelling will be covered by the person who is compelled.
Contents of the compelling order
1. Compelling order is provided in writing.
2. The compelling order contains the name and surname of the person who should be compelled, reason of the compelling order, official stamp and the signature of the judge who issues the compelling order.
3. The compelling order is implemented by the police authority.
4. The person who is entrusted with the implementation of the order submits the order to the person referred to, and summons him/her to go with him/her. If the person referred to in the order does not comply, the police authority will bring him/her.
1. If the minor offence procedure has started against the defendant who does not permanently reside in Republic of Kosovo or if he/she temporarily resides abroad, and in other cases where there is the risk that by fleeing the person can avoid liability on the minor offence, he/she may be required to provide bail.
2. Bail cannot be assigned prior the defendant is questioned even without his/her consent.
Content and the amount of bail
1. Bail is deposited in money. Amount of bail is set by the judge of the minor offence, by taking into consideration the seriousness of minor offence, personal and family circumstances of the accused and the material situation of the person who gives the bail.
2. Exceptionally to the paragraph 1 of this Article, bail consists of paying by cash, securities, valuable objects or movable objects of great value which can be easily converted into cash and easily stored, the person who gives bail or has a personal obligation to one or several citizens, in case of escape of the defendant, he/she shall pay the amount of the bail set.
Action related to bail
1. Bail is forfeited, according to the regulation, until a final decision for minor offence is taken.
2. If a final decision is taken on the suspension of minor offence procedure, the provided bail will be returned.
3. If the person found guilty does not pay for the damage or the costs of the minor offence procedure, the specific amount will be collected from the bail, and if the given amount is insufficient, initially the amount of damage will be compensated.
4. If the person found guilty does not pay the sanction, respectively the specific amount of property gain, after collection of the damage and expenditure of minor offence procedure, the specific amount and sanction from property gain will be collected.
5. If the person found guilty flees or leaves the territory of Republic of Kosovo, the court will issue a decision that the amount given as a bail will be paid to the Budget of the Republic of Kosovo.
QUESTIONING OF THE DEFENDANT
Methods of questioning the defendant
1. The defendant, according to the regulation, is questioned orally.
2. During the questioning the defendant should tell the name and surname, a nickname if he/she has one, name and surname of parents, his/her place of birth and residence, day, month and year of birth, his/her identity personal number, nationality and citizenship, occupation and family circumstances, education, whether he/she has personal income and his/her material position; as well as whether he/she is a minor, identity of his/her legal representative.
3. After acquiring the personal data, the defendant shall be informed on the grounds for which he/she is accused and he/she shall be called to mention everything he/she has to say in his/her defence.
4. If the defendant does not want to answer, or does not answers to the questions asked, he/she shall be warned that in such a way he/she can aggravate gathering of evidence for his/her defence. During questioning the defendant shall be allowed to explain all circumstances which are against him/her and to mention all facts which can serve him/her as defence in an uninterrupted speech.
5. When the defendant ends his/her speech, he/she shall be asked questions, if it is necessary, to fill in the gaps or remove contradictions and unclear statements in his/her speech.
6. Provisions for questioning the defendant shall also be accordingly applied for questioning the liable person of the legal persons, representative of the accused legal entity and entrepreneurs.
Respect for defendants personality
1. Questioning the defendant is done by respecting his/her personality.
2. Against a defendant must not be used force, threat, deceit or similar means so as to get his/her statement or confession.
Defence by writing, confronting and questioning through the interpreter
1. If the court finds that direct oral questioning is not necessary considering significance of the offence and available data, it shall request from the defendant to give his/her defence in writing. In such a case the defendant can make a request to be orally questioned as well.
2. A defendant can be brought face to face with the witness or other defendant if their statements do not match the important facts. The confronted persons shall be questioned regarding each circumstance on which their statements do not match and their answers shall be recorded into minutes.
3. If a defendant is deaf, he/she shall be asked the questions in a written form, and if he/she is mute, he/she shall be asked to provide his/her answers in writing. If questioning cannot be conducted in such way, an interpreter will be called who can communicate with defendant.
QUESTIONING OF THE WITNESS
Role of the witness and the duty to testify
1. Witnesses shall be questioned, if it is necessary for ascertainment of facts.
2. The injured party may be questioned as a witness.
3. Each person called is obliged to respond to the summon, and if it is not otherwise specified by this law, he/she is obliged to testify. Persons, who due to illness or disability cannot answer to the summons, will be questioned in their residence.
4. A witness is not obliged to answer particular questions, if it is likely to expose himself /herself or to his/her relatives serious shame, considerable material damage or criminal prosecution.
5. Decision cannot be based on the statements of witness if:
5.1. a person who cannot be questioned as a witness under Article 104 of this Law was questioned as a witness;
5.2.as a witness is questioned the person, who is exempt from the duty to testify.
5.3. the witness from sub-paragraph 5.2 of this paragraph, if he/she was not warned about, or explicitly did not waive from the right, or the waiver is not recorded in the minutes;
5.4. witness statement was taken by force, under threat or by any other prohibited mean.
Prohibition of testimony
1. Cannot be questioned as a witness:
1.1. the person who with his/her statement would violate the duty of keeping military or official secret, until the competent authority does not release him/her from that duty;
1.2. a legal counsel of a defendant regarding an issue which is entrusted to him/her by the defendant, except in the case when that is requested by the defendant himself/herself.
2. If a person from paragraph 1 of this Article is questioned without previous approval, then the decision on the offence cannot be based on his/her statement.
Exemption from testimony
1. The following are exempted from the duty to testify:
1.1. marital partner of a defendant;
1.2. persons of indefinite direct blood-line relation to the defendant, persons in lateral blood-line to the fourth degree, as well as persons in affinity to the second degree,
1.3. adopter or adoptee of the defendant;
1.4. religious preacher regarding what was confessed to him by a defendant.
2. The judge performing the procedure is obliged to warn the persons from paragraph 1 of this Article that they are not obliged to testify. The warning and the answer shall be recorded in minutes.
3. If the judge does not act in accordance with paragraph 2 of this Article, and the person from paragraph 1 of this Article is questioned as a witness, the minor offence cannot be based on his/her statement.
4. A person who has a basis not to testify against one of the defendants is exempt from the duty to testify against other defendants, if his/her statement according to nature of the matter cannot be restricted only to other defendants.
Method of questioning the witnesses
1. Witnesses are questioned separately and without the presence of other witnesses.
2. The witness is obliged to provide oral answers.
3. The witness shall be warned beforehand that he/she is obligated to speak the truth, that he/she must not withhold information, and he/she shall be warned about the consequences of giving false statements, and he/she shall also be warned that he/she is not obligated to give answers to questions from Article 102 paragraph 4 of this Law.
4. The witness shall be asked about his/her name and surname, name of the parent, age and place of birth, occupation, place of residence and his/her relation with the defendant or injured party.
5. After general questions are done, the witness shall be asked to reveal everything he/she knows about the case, and then he/she shall be asked questions in order to make verifications, supplements and explanations.
6. It is not allowed to ask such questions which imply the presupposed answer.
7. The witness shall always be asked how he/she happens to know the information for which he/she is testifying.
8. If a witness is deaf, he/she shall be asked in writing, and if he/she is mute, he/she shall be called to provide his/her answers in writing. If questioning cannot be performed this way, the court brings an interpreter who can communicate with the witness.
1. Witnesses can be brought face to face if their statements do not match important facts. The confronted witnesses shall in each circumstance, due to which their statements do not match, be questioned separately and their answers shall be recorded in the minutes
2. Only two witnesses can be confronted at the same time.
3. If it is necessary to conclude whether a witness knows a person or object, he/she shall be first asked to describe them and to show the distinguishing marks which will then will be presented to him/her with the purpose of re-recognition, together with some other persons unknown to him/her, respectively, if possible, together with objects of the same kind.
Absence and refusal to testify
1. If a duly invited witness does not show up, and does not justify his/her absence, or without permission or justified reason leaves the place where he/she was supposed to be questioned, he/she can be punished up to twenty (20) Euros.
2. If the witness comes, and after being warned of the consequences, refuses to testify without any legal reason, he/she can be punished with a fine up to thirty (30) Euros, and if he/she refuses to testify even after this, he/she can be punished with a fine up to sixty (60) Euros.
3. The decision on the punishment shall be recorded in the minutes.
4. An appeal against the decision on the fine does not stop the execution of the decision.
5. If the witness agrees to testify immediately after pronouncement of the fine, then the decision made shall be put out of effect.
SITE INSPECTION AND EXPERTISE
1. Site inspection is undertaken when for ascertainment or clarification reasons of some important fact in a minor offence procedure, direct inspection is deemed necessary.
2. The judge who conducts the minor offence procedure determines which persons will be invited to participate in the site inspection. Minutes are kept for site inspection, in which is recorded the name of the judge who conducts the site inspection, persons who takes part, the results of site inspection and other relevant facts.
3. Site inspection can also be done with participation of experts.
1. Expertise is assigned by proposal of the parties, when for conclusion or assessment of an important fact, must be provided the opinion and conclusion from a person who has the necessary professional knowledge. The court may ex officio appoint the expertise, under the terms defined in the law.
2. Expertise can be trusted to relevant professional institution, public authority or expert, primarily from the permanent list of judicial experts, while other authorities or persons may be appointed only if there is danger from delay, if permanent experts are disturbed or if this is required by other circumstances. According to the regulation, an expert is appointed, whereas two or more experts are appointed if the expertise is complicated.
3. Expert is appointed in written order from the judge, who is conducting the procedure. The order shall contain the information regarding which facts should the expertise be conducted and to whom it should be entrusted.
Sanctions of the expert
1. The person who is invited as an expert is obliged to respond to summon and provide his opinion and conclusion.
2. If the duly invited expert fails to appear, or does not justify his/her absence and refuses to conduct the expertise can be ordered to reimburse the expenses incurred, and may also be fined up to fifty (50) euro.
3. The decision for sanction is recorded in minutes. The appeal against the decision to sanction does not delay the execution of sanction.
Persons who cannot be expert and expulsion
1. An expert cannot be the person who cannot be questioned as a witness or a person who is exempt from the obligation of testifying, as well as the person against whom the minor offence has been raised, and if such person is taken as an expert, the minor offence decision cannot be based on his/her conclusion and opinion.
2. Expert cannot be that person who was questioned as a witness.
3. The expert's name shall be communicated to the defendant and the injured party, in accordance to the rules before expertise is conducted.
4. The defendant, claimant and the injured party may request the expulsion of the expert.
5. Regarding the request for exclusion of the expert, the judge conducting the procedure is the one that decides.
6. Appeal against a decision through which the claim for expert`s expulsion is rejected, postpones the expertise, unless there is a risk due to the delay.
1. Before commencing with expertise, the expert will be invited to carefully review the object of expertise, in order to accurately emphasize all of his/her observation and findings and present his opinion, impartially and in accordance with scientific rules or skills. He will be warned especially s about the consequences of giving false evidence.
2. Expertise is led by the judge who is conducting the procedure.
3. The expert may be provided with explanation, and might be allowed the examination of written notes. At the request of the expert, new evidence might be administered in order to ascertain the important circumstances for expertise.
4. Expert observes the objects of expertise in the presence of the judge, who conducts the procedure, and the minute-keeper, unless long-term investigations are needed for the expertise or if investigations are conducted in institutions, namely the state authority or such issue is deemed due to ethical reasons.
Expert`s opinion and conclusion
1. Expert`s conclusion and opinion, according to the rule, is immediately recorded in the minutes. Exceptionally, the expert may be allowed to present the written opinion within the timeline designated by the judge.
2. Expert`s conclusion and opinion is sent to the parties involved in procedure, on which they may be declared within the deadline of fifteen (15) days.
3. The provisions of this law that apply for the experts are accordingly applied for interpreters as well.
SEARCH ORDER OF PREMISES AND PERSONS
Procedure before commencement of search
Search order is set by the judge by a written order, who conducts minor offence procedure. The execution of the search shall be conducted by Kosovo Police, unless otherwise provided by the search order.
Method and actions during the execution of search order
All actions by the official executing the search order and that includes: restrictions in execution of the search order, procedure before commencement of the search and restrictions in search, shall be conducted in compliance with the provisions of Criminal Procedure Code of Kosovo.
Temporary confiscation of objects
1. Objects used to commit the minor offence or are intended for that purpose, acquired or created with a minor offence committed, as well as objects that may serve as evidence in minor offence procedure, will be temporarily seized even before minor offence decision is taken.
2. Temporary seizure of objects is assigned by a written order from the judge. A copy of the order must be necessarily submitted to the person from whom the objects are seized.
3. Official persons from inspection bodies, customs officials from customs service and authorized police officers can be authorized by law to temporarily seize the objects from paragraph 1 of this Article, when while performing official duty they learn about the minor offence. These bodies are obliged to inform the court regarding temporary seizure of objects and care about their preservation, if not otherwise specified by the law.
4. The person, from whom the objects were seized, is provided verification with accurate description of seized items.
5. If the item is fragile or if its storage requires high cost, the judge will order the sale of the object, and funds received from the sale should be deposited in the bank for preservation purpose.
6.Temporarily seized objects or money gained from the sale of objects are returned to the owner if the minor offence procedure does not end with a decision, in which the defendant is found liable, except when it is in the interest of general security or ethical reasons for which the court issues a special decision.
7. If within the deadline of one (1) year, no one appears to claim the object or the money earned from the sale of objects, a decision will be taken for the object to become public property, namely the money are deposited to Kosovo`s budget. The objects owner is entitled that in a civil right contest to request the return of the objects or the money earned from the sale of such object. The statutory limitation of this right commences from the date of announcement.
Actions on foreign object found at the defendant
1. When a foreign object is found at defendant's possession, and whose ownership is unknown, the judge who conducts the minor offence procedure will describe that object and the description will be posted on the bulletin board of the municipal assembly in whose territory the minor offence was committed.
2. The owner of the object will be invited in the announcement to appear within one year from the date of publishing this announcement and will be warned that after expiration of that period, the object will be sold. The money earned from the sale of the object is revenue for the municipality in which the object is seized.
3. If the objects are of a greater value, announcement may be done in the daily newspapers.
4. If the object is fragile or its preservation has considerable cost, then it will be sold under the applicable provisions for enforcement procedure, and the money will be handed over for safekeeping at the bank.
5. The provision in paragraph 3 of this Article will be applied even when the objects belongs to a fugitive or unknown offender of a minor offence.
Violation of order at a minor offence procedure
1. A person who, in spite of warning, behaves indecently at the court in which the procedure is conducted, or in some other way disturbs the work of the court, shall be punished with a fine of fifty (50) euro.
2. An appeal against the decision from paragraph 1 of this Article stops the execution of the decision.
Appointing judicial review
1. The judge who leads the first instance procedure shall assign judicial review when such action is necessary to better clarify the case.
2. At the judicial review is called the defendant and his/her counsel, and if necessary, also the claimant, witnesses and experts. If the defendant is a legal person, then the representative of the legal person shall be called to the hearing.
3. The injured party shall be informed about the date, time, and place of the review.
Absence of the defendant
1. The judge who leads the procedure can decide to hold the review in absence of the defendant that was duly invited, if he/she is previously questioned and the judge concludes that his/her presence is not necessary for proper conclusion of the factual situation. Under the same conditions, judicial review can be held in absence of duly invited counsel, respectively the representative of the accused legal person.
2. Judicial review shall be held even if duly invited counsel of the defendant is absent.
Publicity of public review and exclusion of the public
1. Judicial review is public.
2. The judge who leads the procedure can decide to expulse the public from the review or part of it, if that is required by common interest or ethical reasons
3. If the procedure is led only against juveniles, then the judicial review shall always be held without the presence of the public.
Course of review
1. Judicial review commences with announcement of the main contents of the request, and after that the hearing of the defendant shall be conducted. If the defendants are legal persons and liable
person at legal persons, then the representative of the legal person shall be heard first, and after him/her the liable person. Hearing of a defendant is followed with evidence administration and other evidence administration.
2. Minutes are held regarding the course of judicial review, in which is recorded the course of the entire hearing. The judge and minute-keeper shall sign the minutes of the judicial review.
Rights of the parties in the review
1. Claimant, defendant and his counsel, representative of a legal person, liable person of legal person and the injured party have the right to propose evidence and make other proposals during the review, and with permission of the judge who leads the procedure, to make question to the persons who are being heard.
2. The final say at the judicial review always belongs to the defendant or the representative of accused legal person or responsible accused legal person.
JUDGMENT OF MINOR OFFENCES
Issuing the judgment
1. Minor offence procedure ends with a judgment for conviction or acquittal, with the ruling which suspends the procedure or of the ruling in which the juvenile offender of minor offence is pronounced the educational measures
2. Judgment or the ruling of minor offence is based on the evidence and facts that were administered, which were concluded in the procedure.
3. Judgment or the ruling for minor offences is issued immediately after completion of all actions in minor offence procedure which precedes the issuance of the judgment or ruling.
4. The ruling on minor offence by which the defendant is found responsible for the minor offence shall be taken when at the offence procedure, based on the submitted request, is verified the existence of the minor offence and the defendant`s responsibility.
Judgment of several minor offences
If the minor offence procedure is carried out on several minor offences, in the judgment will be noted the minor offences' for which the procedure is suspended, and those for which the defendant is found responsible and sanctioned.
Ruling for the end of minor offence procedure
1. Minor offence procedure shall end with a ruling when found that:
1.1. such action is not defined as a minor offence;
1.2.there are circumstances which excludes the liability for minor offences;
1.3. procedure is conducted without the request of a person, or authorized body;
1.4. defendant due to the same minor offence is sanctioned with a final decision at the minor offence procedure or it has ended by a final decision in the minor offence procedure, but not due to incompetence;
1.5. the defendant in criminal procedure is found guilty in a final form for the same act which also includes features of minor offence;
1.6. the defendant enjoys diplomatic immunity;
1.7. that the statutory limitation is effective in relation to conducting the minor offence procedure;
1.8. there is no evidence that the defendant committed the minor offence;
1.9. the defendant died during the minor offence procedure, respectively accused legal person ceased to exist;
1.10.the claimant waived the request before the minor offence judgment became final.
2. Minor offence procedure will end in other cases determined by law.
Judgment by which the defendant is found liable
1. The judgment by which the defendant is found liable for minor offence is issued when in minor offence procedure is concluded the existence of minor offence and defendant`s responsibility for that minor offence.
2. In the judgment by which the defendant is found responsible, the court will emphasize in its disposition:
2.1. the offence for which is found responsible, by emphasizing the facts and circumstances constituting the minor offence characteristics and from which the application of certain provisions of minor offences depends on;
2.2. denomination of the minor offence and the provisions of the minor offence applied;
2.3. for which sentence the defendant is sanctioned;
2.4. decision on protection and confiscation measures of property gains;
2.5. decision for calculating deprivation of freedom and detention;
2.6.decision on the costs of minor offence procedure and legal property claim.
3. If the defendant is sentenced with a fine, it will be noted at the disposition of the judgment the due date for payment of the fine and the method of replacement of the fine.
4. If protective measure for confiscation of object is imposed, in the disposition of the judgment will be determined the action in relation to the confiscated objects.
Judgment by which the defendant is released of liability
1. The court will impose the judgment by which the defendant is relieved of liability, if:
1.1. the act for which he/she is charged under the provision does not constitute a minor offence;
1.2. it was not proved that the defendant committed the minor offence, for which against him/her is submitted the requests for initiation of minor offence procedure;
1.3. circumstances that exclude the responsibility of defendant for minor offence exist.
Communication, drafting and submission of judgment for minor offence
1. The decision on offence shall be announced orally if the defendant is present.
2. The decision on the minor offence shall be drafted in writing within eight (8) days from the day when all actions in the offence procedure are finished.
Content of minor offence judgment
1. Judgment for the minor offence drafted in writing contains:
1.4. guidance on legal advice; and
1.5.number, date, signature of the judge and official stamp.
2. Introduction of the judgment contains:
2.1. name of the court;
2.2. name, surname, place of residence, and work place of the defendant, namely the name and address of accused legal person;
2.3. minor offence that is the subject of procedure;
2.4. the legal basis under which the judgment was obtained and
2.5.date of rendering the judgment.
3. Disposition of the judgement contains personal information on the defendant and decision by which the defendant is pronounced responsible for minor offence, and if the procedure has been suspended, the disposition contains the decision on suspension of the judgement
4. In the reasoning of the judgement, are briefly presented only essential reasons on ascertained factual situation, with brief emphasis of evidence based on which certain facts are considered proven, as well as provisions on which the disposition of the judgement is based.
5. Guidance on legal advice contains advises regarding the fact of who has the right to appeal against the minor offence judgement, the time limit by which the appeal can be submitted, to whom shall it be handed, and who decides on the appeal.
The content of the disposition of minor offence judgement
1. Disposition of the offence judgement by which the defendant is pronounced guilty must contain:
1.1. the offence for which the defendant is pronounced responsible by noting the facts and circumstances which are characteristic for the offence, as well as those from which depends the application of certain provision of the law or other provision;
1.2. provisions of the law or other provision by which the offence is determined;
1.3. sanctions which is pronounced;
1.4. protective measure which is pronounced and the provisions on which it is based;
1.5. decision on expenses of the minor offence procedure;
1.6.decision on the legal property claim.
2. If a fine is imposed to the defendant, in the disposition of the judgement for minor offence, will be emphasized the time limit by which the defendant has to pay the fine, the method of replacement of the fine, namely emphasis that the fine shall be collected by compulsion, unless paid in time in accordance with the provisions of this law.
Reasoning in the minor offence judgement
1. In reasoning of the minor offence judgement with which the offence procedure is suspended, shall briefly emphasize the reasons for suspension of the procedure and provision on which such action is based upon.
2. In reasoning of the minor offence judgement with which the defendant is found liable, the reasons for each decision from the disposition of the judgement shall be presented, and it shall in particular present the reasons for which minor offence sanction is imposed.
Correction of judgement and other decisions
1. Errors in writing names and numbers, as well as other visible errors in writing and in calculation in the minor offence judgement shall be corrected by official duty or upon proposal of the defendant, claimant or injured party.
2. Correction shall be made with a special judgement and will be marked into the original.
3. If it is about mistakes regarding Article 130, paragraph 1, sub-paragraphs 1.1, 1.2, 1.3 and 1.4 of this Law, the corrected transcripts of the judgement shall be sent to persons who have the right of appeal against the judgement. In this case the time limit for an appeal starts from the day of submitting the corrected copy of judgement.
Delivery of the minor offence judgment to participants of the procedure
1. When the judgement on the offence is announced orally to the defendant who is found responsible, then the written copy of the judgement shall be delivered to him/her only if he/she requires so.
2. If the defendant requires delivery of the copy of judgement, the judge is obliged to deliver it within eight (8) days at the latest, and if execution of the judgement is ordered before it becomes final, then the copy of the judgement has to be delivered to the defendant within twenty-four (24) hours at the latest.
3. The request from paragraph 1 and 2 of this Article shall be put into the minutes.
4. A copy of the judgement on the offence shall be delivered to the claimant and defendant, if they have not waived the right of appeal that is if they have not declared that the judgement is not delivered to them.
REGULAR LEGAL REMEDIES
Right to appeal
1. Against the judgement and ruling on the minor offence made in the first instance can be lodged an appeal to the Appeal Court (hereinafter: Court of second instance)
2. Against a judgement on the offence by which a defendant is pronounced liable, an appeal can be lodged by the defendant or claimant.
3. An appeal can be lodged in behalf of defendant by his/her spouse, direct blood-line relatives, defence counsel, legal representative, adopter and adoptee.
4. If protective measure of object forfeit is imposed, the owner of who is not accused, than the owner of the object can lodge the appeal only in regards to the decision on that measure.
5. The appeal shall be lodged within eight (8) days from the day of oral announcement of the judgement that is from the day of submitting the judgement on minor offence.
6. The appeal of authorized person, namely of authorized body submitted on time, delays the execution of the judgement and ruling, except in cases when it is otherwise described by this law.
Renunciation and abstention from appeal
1. The defendant and claimant can renounce from their right of appeal after the judgement on the minor offence is pronounced, and they can abstain from the lodged appeal until judgement of second instance is pronounced.
2. Renouncing and abstaining from the right of appeal cannot be revoked.
3. Renouncing from the right of appeal by juvenile does not have legal effect.
4. If the defendant pays the fine before judgement is final, it shall be considered that this way he/she waived his/her right of an appeal.
5. If judgement on the offence is communicated orally to the defendant, he/she shall be reminded of provisions from paragraph 4 of this Article.
Contents of appeal
1. An appeal shall contain notice of judgement on the minor offence against which an appeal is lodged as well as signature of the claimant.
2. The appeal shall not necessarily be reasoned but it is sufficient to note regarding what the complainant is unsatisfied with the decision.
3. New facts and evidences can be included in the appeal. Based on the new facts, the complainant is obliged to note the evidence by which these facts would be argued.
4. If the complainant in the appeal presents new evidence, he/she is obliged to explain the reason why these evidences were not presented earlier, and to note the facts that he/she wants to prove with the new evidence.
Reasons by which judgment and ruling may be objected
1. Judgment and ruling may be objected due to:
1.1. substantial violations of provisions of minor offence procedure;
1.2. erroneous application of substantive law, based on which the minor offence is provided;
1.3. erroneous or incomplete verification of factual situation;
1.4.the decision on minor offence sanctions, confiscation of property gain, cost of minor offence procedure and legal property claim.
Substantial violation of provisions of minor offence procedure
1. Substantial violation of provisions of minor offence procedure is considered if:
1.1. the composition of the court was not in accordance with law or while rendering the judgment, participated a judge who was not present at judicial review, or when by final decision is excluded from trial;
1.2. in judicial review, participated the judge who should have been excluded;
1.3. judicial review was held without the persons, whose presence at judicial review is required by law, or the defendants or counsels, despite their claim, is denied the use of his/her language in the judicial review and following the development of judicial review in his/her language;
1.4. public is excluded from verbal essence contrary to the law;
1.5. the claim is submitted by the non-authorized claimant;
1.6. decision is taken by the court which had no subject matter jurisdiction to process the case.
1.7. court by its decision did not fully process the case;
1.8. decision is based on inadmissible evidence;
1.9. disposition of decision is ambiguous, contradictory with itself or with the reasons of the decision or the decision does not contain the reasons or the reasons are not emphasized regarding the decisive facts or those reasons are completely incomprehensible or highly contradictory.
2. Substantial violation of provisions of minor offence procedure exists even if during the course of preparing the verbal session, or during the procedure or upon issuing the decision, the court has not applied or has improperly applied a provision of the law, while this was influential to the issuance a lawful and fair decision.
Violation of substantive law
1. Violation of substantive law by which the minor offence is prescribed exists if the court did not apply or has wrongly applied the provisions which determine:
1.1. whether the action is a minor offence for which the defendant is prosecuted;
1.2. whether there are circumstances that exclude the minor offence liability;
1.3. whether circumstances that excludes the development of a minor offence procedure exist, especially if the beginning and development of the offence is in statute of limitations, or earlier the issue was decided in final form;
1.4. in view of the minor offence, which is the subject of the request to initiate a minor offence procedure, was the law under which the offence is provided wrongly applied;
1.5. regarding the decision on sentencing and other measure, was the authority, that the court has according to the law, exceeded;
1.6. were there a violation of provision for calculating detention or other form of deprivation of freedom regarding the minor offence
Inaccurate or incomplete verification of factual state
1. Court decision can be objected due to inaccurate or incomplete verification of factual situation if the court mistakenly has verified or did not verify.
2. Incomplete factual situation verification exists and that is made aware by the facts or new evidences.
1. The judge will reject, with a final judgment the appeal, namely the objection which is not submitted in a timely and proper manner.
2. If the judge fails to reject an appeal which is not submitted in a timely and proper manner, then this appeal would be rejected by the second instance court.
3. When the judge who rendered the judgment for a minor offence related to the appeal finds that the procedure is incomplete, which could affect the regularity and legality of the judgment of minor offence before submitting it to the court of second instance will fill the procedure within the boundary of the statement in appeal.
4. If in case of paragraph 1 of this Article, the judge determines that the appeal has been submitted in favour of the defendant, is based, the previous judgment for minor offence will be abolished and a new judgment will be rendered for minor offence, provided that the new judgment of minor offence cannot be less favourable to the defendant.
5. The judge will always abolish the previous judgement for minor offence and with a judgement will suspend the minor offence procedure, if relative to the appeal of the defendant finds that there is any of the reasons specified from Article 100 paragraph 1 of this Law.
6. The judge will send the appeal together with the letter of the case to court of second instance no later than within three (3) days after it determines that deadline for submitting appeals of the persons has expired, respectively bodies who under this law are authorized to submit appeal, namely from the date when the procedure is completed.
Decision of the court of second instance regarding the appeal
1. By deciding on the appeal, the court of second instance may verify, change or abrogate the judgement for minor offence. The court of second instance is not related to the reasons set out in the appeal, and always according to official duty will investigate whether there is a violation of provisions of the minor offence procedure which would or could be influential in legal decision.
2. The court of second instance shall reject the appeal and shall verify the judgment of the first instance when it determines that there is no reason due to which the judgment is abrogated or there is no other reason which might abrogate or change the judgment.
3. The court of second instance will change the judgement of the first instance if it finds that the decisive facts are ascertained in the first instance procedure and considering the factual situation found that other decision should be taken or if it finds that there are violations of the law which can be avoided without abrogation of the judgment of first instance or upon determining the sentence, i.e. the application of protective measures, if the circumstances are not taken into account that affect the proper sentence determination, respectively, for awarding legal protective measure or when circumstances that were taken into account were not fairly assessed.
4. The court of second instance will change the judgement of the first instance when it finds that the judge wrongly evaluated the documents and evidence which he/she did not manage him/her- self, while the decision is based on that evidence.
5. The court of second instance shall abrogate the first instance judgement and will return the case to review if it determines that there is a violation of the provisions of the minor offence procedure that has been influential or could affect the legal decision of a minor offence case or if it determines that due to the state of incorrectly or incompletely ascertained facts, then new procedures should be conducted, for the same reasons the judgment of the first instance may be partially abrogated if some parts of the judgement can be emphasized without adverse consequences for proper decision.
6. If the court of second instance finds that the court of first instance did not have the authority to decide, shall abrogate the judgment of first instance and will forward the case to the authorized body.
7. If the court of second instance, upon appeal of any party determines that the reasons for which the decision was taken in favour of the defendant, who complained, is also in favour of any of the co-defendants who did not submit the appeal or has not filed an appeal in this regard, will act ex officio as such appeal to exist.
8. If an appeal is submitted only in favour of the defendant, the judgment of first instance for minor offence cannot be changed to his/her disadvantage, nor in repeated procedure in the first instance, the judgment which is less favourable to the defendant cannot be taken.
Reasoning of the judgement of the court of second instance
1. In the judgement reasoning, the court of second instance considers the appeal statements and emphasizes the violations of the law which was considered ex officio.
2. When the first instance judgment is abrogated for minor offence due to violation of provisions of the minor offence procedure, at the reasoning of the judgment it will be noted which provisions have been violated and where the violation consists.
3. When the first instance judgment is abrogated because of an inaccurate or incomplete verification state of facts, it will be noted where the flaws of procedure are, namely why the new evidence and facts are important and affect in taking the right decision.
Delivery of the decision to the court of second instance
1. The court of second instance will return all the case files to the court of first instance in a sufficient number of copies, verified with its judgment for minor offence to be delivered to the defendant, the claimant and other interested persons.
2. Court of first instance is obliged to administer all actions and review all disputed issues that were noted in its judgment by the court of second instance.
EXTRAORDINARY LEGAL REMEDIES
Repetition of the procedure
1. Minor offence proceedings concluded with a final ruling on the minor offence may be repeated if:
1.1. it is proved that the decision was based on a false document or on a false testimony of the witness or expert;
1.2. if its proved that the decision is taken because the judge for minor offences or another official which participated in the procedure, have committed a criminal offence;
1.3. if it is concluded that the convicted person, has already been punished for the same action in the minor offence procedure or that before the decision has been reached on the minor offence the person has been found guilty, for the same act, in the criminal procedure;
1.4. if new facts or new evidences are presented that could have impacted on the decision if they were to be known in the previous procedure.
2. Facts in paragraph 1 sub-paragraphs 1.1, 1.2 and 1.3 of this Article are proved with the final decision by the court from which the persons in question are found guilty of respective criminal actions. If the proceedings against those persons cannot be conducted because they are dead or due to the fact that there are circumstances which exclude the criminal prosecution, the facts from paragraph 1, sub-paragraphs 1.1, 1.2 and 1.3 of this Article may be proved with other evidences.
Submission of the claim for repetition and the procedure according to the claim
1. The claim for repetition of the minor offence procedure may be submitted by the convicted and the claimant, whereas after the death of the convicted, the claim may be submitted by other persons mentioned in Article 134, paragraph 3 of this Law.
2. The claim for the repetition of the minor offence procedure may be submitted in the time frame of one (1) year from the date of the final judgement on the minor offence.
3. The court which has issued the decision on the minor offence in the first instance, decides in relation to the claim for repetition of the procedure on the minor offence.
4. The claim shall emphasize the legal base upon which is requested the repetition of the procedure and which proofs support the claim. If the claim does not contain the abovementioned data, it will be rejected with a ruling.
5. The claim will be rejected if based in the claim and evidences from the written notes of the subject from the previous procedure it is found that the claim has been submitted by unauthorized persons, or that the claim has not been submitted on due time, or that there are no legal conditions for the repetition of the procedure, whereas the claim will be rejected if the facts and proves on which the claim is based upon are clearly not suitable to allow the repetition.
6. An appeal can be submitted to the second instance court against the decision for ruling out or for rejecting the request for the repetition of the procedure in a time frame of fifteen (15) days from the day of delivery.
7. The request for the repetition of the minor offence procedure on the favour of the convicted may be submitted even after the decision is executed.
Postponing the execution of the decision
1. The claim for repetition of the procedure does not postpone the execution of the decision, however, but if the judge considers that the claim may be approved, may decide to postpone the execution until a decision is reached in relation to the claim for the repetition of the procedure.
2. In the ruling by which is allowed the repetition of the procedure is postponed the execution of the decision against which repetition is allowed.
3. If the repetition of the procedure is allowed, a decision cannot be reached in the new procedure which is less favourable to the defendant.
Claim for the protection of legality and deciding pursuant to the claim
1. A claim for the protection of legality may be filed against a final judgement on the minor offence by which it is violated the law or other provisions on the minor offence.
2. The claim for protection of legality is filed by the state prosecutor within a time frame of three (3) months from the date when the judgement on the decision has become final.
3. Provisions of the Criminal Procedure Code in relation to the submission of the claim for the protection of legality and deciding on it accordingly will be applied on the claim for protection of legality in the minor offence procedure.
Procedure on juveniles
1. The provisions of this chapter may be applied in the minor offence procedure against a juvenile, whereas other provisions of the minor offence procedure foreseen by this law are applied only if not in contradiction with the provisions of this chapter.
2. Minor offence procedure against a juvenile is urgent and always non-public.
3. Upon undertaking actions against a juvenile perpetrator in his/her presence, and especially during his/her questioning, the persons involved in the procedure are obligated to act with caution, taking into consideration the psychological development, sensibility and personal characteristics of the juvenile.
4. Prior to imposing the correctional measure or convicting the minor persons, the opinion of the competent guardianship body shall be provided, unless if the juvenile, in the meantime, became an adult. If the competent guardianship body does not send its opinion in a time frame of sixty (60) days, the court may impose to the juvenile person a reprimand or a fine even without the opinion of the guardianship body.
Summon of a juvenile
1. The juvenile is summoned through the parent, respectively the legal representative, unless when not possible due to the urgent need of action or other reasons.
2. If the juvenile is not summoned through the parent, respectively the legal representative, the court which conducts the minor offence procedure will inform them in relation to development of procedure
Obligation to testify
No one can be relieved from the duty of testifying on the necessary circumstances for the assessment of psychiatric development of the minor, for the recognition of his/her personality and the conditions on which he/she lives.
Separation and concurrence of procedure
1. When the minor participated in the commission of the offence together with adults, the procedure against him/her will be separated and will be conducted pursuant to the provisions of this chapter.
2. Due to reasonable causes the procedure against a juvenile can be conducted jointly with the procedure against adult persons and will be conducted pursuant to general provisions of this Law.
3. The judge appointed to the case issues the ruling for separation or concurring of the procedure. Appeal against this ruling is not allowed.
The rights of the parent and the guardian
In the procedure against a juvenile, the competent guardianship body and the parent, respectively the guardian of the juvenile have the right to be informed on the course of the procedure, to make proposals during the procedure and to point out facts and evidences which are important for reaching a fair decision.
Procedure Development Opportunity
1. The court may decide not to initiate minor offence procedure against a juvenile if it considers that it would be inopportune to conduct the procedure considering the nature of the minor offence, the background of the juvenile and his/her personal qualities.
2. In the case from paragraph 1 of this Article, by means of a ruling shall be ruled out the request for initiation of a minor offence procedure stating the reasons for ruling out the request, whereas regarding the parents, respectively the guardian of the juvenile and the guardianship body, will be informed on the misdemeanour commissioned by the juvenile in order to take measure within their authorization in this regard.
The right to appeal
1. Against the ruling on the minor offence by which the juvenile has been found guilty on the misdemeanour, in addition to the persons from Article 135 paragraph 2 of this Law, the guardian, brother, sister and defender of the juvenile have the right to appeal.
2. The persons from paragraph 1 of this Article may submit the appeal in favour of the minor even against his will.
Actions related to the child
1. When the court determines that the juvenile, at the time of the minor offence, has not reached the age of fourteen (14) years old, by the means of a ruling shall suspend the procedure.
2. In the case from paragraph 1, the court will inform the parents, respectively the guardian of the minor and the guardianship institution on the minor offence that was committed, and as needed, may inform the school respectively the organization on which the juvenile is sheltered.
RESTITUTION OF DAMAGE DUE TO UNJUSTIFIABLE PUNISHMENT
Recovery of money
1. A person upon which, in a minor offence procedure, was unjustifiably imposed the fine, protective measure of property gain confiscation or the protective measure of object confiscation, he/she is entitled to reimburse the fines paid, to return the confiscated property gain and return the object or its equivalent value in cash (hereinafter: recovery of money).
2. A persons is considered to have been unjustifiably punished if the final judgment on the minor offence is changed or abrogated the procedure against him/her is suspended by final decision because it has been found that the act does not constitute a minor offence or that there are basis which exclude the liability of perpetrator of the minor offence, or there is no evidence that he/she has committed the minor offence.
3. Recovery of money cannot be requested by convicted person who has caused the punishment because of his/her false confession.
4. After the death of the person unjustifiably punished, his/her spouse and relatives which by law he/she was obligated to support are entitled to request the reimbursement of money.
1. The right of a person unjustifiably punished and the person who, by law, he/she was obligated to support in order to request the restitution of the damage, namely the reimbursement of money, shall expire for one (1) year from the date of receiving the final judgment on the minor offence, by which the minor offence procedure is suspended.
2. The statutory limitation from paragraph 1 of this Article ceases by submission of a claim to the competent ministry of the issue of finances.
3. If the claim for reimbursement of damage, i.e. recovery of money has been submitted by unjustifiably sentenced person, after his/her death, persons from Article 158 paragraph 4 of this Law can continue the procedure for fulfilment of the claim within limits of the previous request.
4. If unjustifiably sentenced person renounces from the request for reimbursement of damage, i.e. the recovery of money, then no claim can be submitted after his/her death.
Procedure on realization of rights
1. The authorized person shall submit the claim for reimbursement of damage to the Ministry competent for financing, whose body has imposed the sentence in order to make an agreement on existence of the damage and the amount of compensation.
2. If the agreement is not reached within two months from the day when the claim has been received, the authorized person can submit the lawsuit for damage compensation against the Republic of Kosovo and start the procedure with the competent court within thirty (30) days from the expired date for reaching the agreement.
3. The claim for recovery of money shall be submitted to the competent Ministry for financing, in whose favour such amount of money has been paid. If the competent body refuses the claim or within two months does not come up with a ruling on the claim, the authorized person can realize his/her claim by lawsuit for damage compensation with the competent court within the time limit from paragraph 2 of this Article.
4. At the claim of the person whose reputation has been severely damaged due to such unjustifiable sentence, and especially if the case was shown in the public information media, then in the same media shall be published the announcement on the decision upon which such unjustifiable sentence of that person has been based. If in the meantime the convicted person dies, the right to submit such claim belongs to his/her marital partner, children or parents.
EXECUTION OF MINOR OFFENCE SANCTIONS
Execution of decisions
1. The decision on minor offence shall be executed when it becomes final, unless otherwise prescribed by this law.
2. The decision on minor offence is final when it cannot be refuted by an appeal or when the appeal is not allowed.
3. The decision on minor offence, by which a fine is imposed or it has been decided for reimbursement of the procedure costs and damage compensation, or protective measure of recovery of property gain is pronounced, shall be executed after expiration of the time which is predicted for payment of fine, procedure costs, damage compensation i.e. property gain.
Execution of the decision before becoming final
1. The decision on minor offence can be executed even before achieving its final form in the following cases, if the defendant cannot prove his/her identity, or does not have a place of residence, or if he/she goes abroad, whereas the judge finds that there is reasonable doubt that the defendant will hinder execution of the imposed sentence
2. In cases from the paragraph 1 of this article, the court, in the judgement shall conclude that the execution of the imposed sentence shall start even before the decision becomes final.
3. If the defendant lodges an appeal against the ruling from paragraph 1 of this article, the judge shall submit the appeal with the written notes to the second instance court within twenty-four (24) hours from the moment of reception. The second instance court is obligated to decide on the appeal and send its decision to the judge of first instance court within fourty-eight (48) hours from the moment when they received the written notes.
4. The decision on minor offences which is made in procedure against a juvenile cannot be executed before it becomes final.
Execution of fines and other costs
1. The fine imposed for minor offence and expenses of minor offence procedure shall be executed by the court which imposed the punishment.
2. Fine and expenses for minor offence procedure shall be paid through the post office or bank by special undelivered money issued by the court, within the period determined by judgement for minor offence.
3. Regarding the conducted payment of fine and minor offence procedure expenses, the convicted person shall, without delay, inform the court which has imposed the judgement on punishment.
4. Compulsory collection of fine for the minor offence and the expenses for minor offences procedure shall be done in accordance with provisions on compulsory collection of taxes.
5. The competent body for compulsory collection from paragraph 1 of this Article shall, without delay, inform the competent court for minor offences regarding collection executed, as well as regarding eventual impossibility of compulsory collection.
Execution of object confiscation protective measure
1. Protective measure of confiscation of an object which has been used, or intended for committing minor offence, or which was created as a result of the minor offence, shall be executed by the court which pronounced this measure in the first instance.
2. Depending on nature of the objects confiscated by the court from paragraph 1 of this Article shall make a judgement whether such objects shall be sold in accordance with provisions which apply to tax execution based on the Law on taxes, or whether they shall be handed over to the professional or public criminology institute, organization or should be destroyed
3. If the defendant wilfully used or destroyed the minor offence object, or in some other way has made the execution impossible, he/she shall be obligated by a special decision of the minor offences court to pay the amount of money that corresponds to the value of the object.
4. The money obtained by selling the object that is in possession of the convicted person, shall be deposited in the Budget of the Republic of Kosovo. If the object is not in possession of the convicted, the money obtained from the sold object shall be returned to the owner.
5. If the owner is unknown or does not present himself/herself within the timeframe of a year, the money obtained is property of the Budget of the Republic of Kosovo.
6. Protective measure of property gain confiscation shall be executed by the court which imposed the decision on minor offence.
7. Compulsory execution of this measure shall be conducted by the competent body for income affairs in accordance with provisions for compulsory collection of taxes.
8. From immovable property, the property gain which exceeds fifty (50) Euro can be collected compulsory.
9. Compulsory collection of confiscated property gain from real estate shall be done by the court according to the provisions of enforcement procedure.
10. The confiscated property gain belongs to the budget of the Republic of Kosovo, unless otherwise prescribed by a special law.
11. The costs of execution shall be borne by the convicted person.
12. Execution of protective measure of property benefit confiscation imposed to a legal person who ceased to exist after the minor offence decision became final, shall be conducted against the legal person which has taken over its property up to the amount of the property taken over.
Execution of the protective measure of foreigners’ expulsion from the country
1. Protective measure of expulsion of foreigners from the country shall be executed by the competent body of internal affairs in accordance with provisions on the transit and residence of foreigners in the Republic of Kosovo.
2. The court which has issued a decision in the first instance is obligated that the final decision on the minor offence by which is pronounced the measure from paragraph 1 of this Article, without postponing, hand over to the police department for execution.
Damage compensation and recovery of valuable objects based on the final ruling of minor offence shall be done at a claim of the damaged person, namely from the owner of the object. Compulsory collection shall be done according to provisions applicable for the enforcement procedure.
TRANSITIONAL AND FINAL PROVISIONS
Harmonization of provisions which are not in accordance with this law
Provisions on minor offences, which are not in accordance with this law, shall be brought into compliance within one (1) year from the day when this law enters into force.
Commenced procedures and implementation of decisions
1. The proceeding shall be completed according to the provisions of the existing law, but at the longest in a time limit of one (1) year from the entry into force of this law.
2. The punishments imposed in the final form shall be executed according to the current law/legislation.
3. The Decision imposed in the first instance according to the current legislation, until the issuance of a final decision, shall be substituted by an adequate sanction, whereby imprisonment shall be substituted by a fine, however if there is a repetition of the proceeding, the same shall be conducted in accordance with this law.
4. With the entry into force of this law, the minor offence proceeding which are not concluded under the provisions of the current legislation on minor offences, shall be concluded under this law, if they are more favourable to the defendant.
Issuance of sub-legal acts
Sub-legal acts foreseen by this law will be issued within six (6) months from the date of entry into force of this law.
Cessation of existing applicable legislation validity
With the entry into force of this Law, the applicable law on minor offence shall cease to apply.
Entry into force
This Law shall enter into force in January 2017.
Law No.05/L - 087
5 August 2016
President of the Assembly of the Republic of Kosovo