The project organised two 1-day workshops on constitutional justice and standards of the European Convention on Human Rights (ECHR) with lawyers of Pristina Branch of the Bar Association. The workshops featured presentation of the Guide on Admissibility of Referrals to the Constitutional Court, and training on the Use of Electronic Evidence in Criminal Proceedings.
A significant challenge facing the Kosovo* Constitutional Court is the high rate of inadmissible individual referrals, with over 85% being declared inadmissible based on recent statistics. To address this issue, project supports the court in outreach to lawyers to introduce them admissibility criteria. Therefore, the first part of the workshops centered on the newly developed "Guide on Admissibility of Referrals to the Constitutional Court." A Judge and Jurisconsult from the Constitutional Court led interactive discussions with more than 90 lawyers of Bar Association, meticulously explaining the main admissibility criteria. These included key concepts such as ratione materiae (subject matter jurisdiction), ratione temporis (jurisdiction based on time), ratione loci (territorial jurisdiction), ratione personae (personal jurisdiction), and the grounds for deeming applications "manifestly ill-founded." The sessions fostered a dynamic exchange, with lawyers actively posing questions and receiving direct insights from the Constitutional Court's legal professionals. This practical interaction aimed to bridge the gap in understanding and ultimately increase the number of admissible cases reaching the court.
The second part of the workshops was allocated for the training on ECHR standards and practice of the European Court of Human Rights (ECtHR) in use of electronic evidence in criminal proceedings. In the era of rapid digitalisation in all spheres of life, electronic evidence is becoming increasingly used in conducting investigation and judicial proceedings. Even though not specifically mentioned in the ECHR, the guarantees of the right to a fair trial and to respect for private life can have implications for the use of such evidence. In this context, lawyers exchanged with expert on the evidential value of electronic evidence, and duties to gather and disclose it, as well as on issues related to gathering of electronic evidence through search, seizure and surveillance, and basis for conviction and defence.
Emphasizing the importance of electronic evidence, lawyers learned that the ECtHR considers the gathering of certain electronic data vital for meeting the procedural requirements of effective investigations, especially concerning deaths and alleged violations of ECHR Articles 2, 3, and 8 (protecting the life, prohibiting ill-treatment and protection of privacy). They may include data relating to mobile phone usage, digital photos, recordings from CCTV and surveillance cameras, social media files, the content stored on the internet service provider’s network infrastructure, and a video-recording of the force used to effect an arrest. On the other side, a failure to seek evidence could also lead to a ECtHR’s conclusion that a substantive violation of those rights had occurred and the deficient gathering of evidence could be prejudicial to the accused. Specific reference was made to the lawfulness of the interception of communication and surveillance, admissibility, quality and reliability of electronic evidence, and equality of arms in access to such evidence guaranteed to the parties in proceedings.
The training was conceptualised around the Handbook on Use of Electronic Evidence recently published by the Council of Europe, and facilitated with support of the author of this handbook, Jeremy Mcbride.
So far, the project supported six thematic workshops in cooperation with Bar Association on different standards of the ECHR, ECtHR caselaw and Admissibility to the Constitutional Court. More than 300 lawyers from all regions of Kosovo benefitted from this capacity building activities. New activities with them are envisaged in the second quarter of 2025.
[1] All references to Kosovo, whether to the territory, institutions, or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.
