Bernd Borchardt and Hajredin Kuci

30 August 2013

There is no doubt about it: a free press is a cornerstone of any democracy, particularly fragile or developing democracies. Along with elections, it is a key accountability tool. Elections happen only once every four years. Government happens every day. So, there must be a free press to assist in holding Governments and public officials to account between elections. A free press, when acting to hold governments or public officials to account, should be acting on behalf of the people, acting in the public interest.

A free press is frequently very powerful. Many newspapers in many countries have carried stories that have revealed political excess, ineptitude or fraud. Many times this has led to individual and collective resignations, changed policies, or legislative reform. That’s what a free press should be doing: holding up public officials to scrutiny, and when things are being done wrongly, or done in a way that damages the public interest, informing the public about it.

And there are many fine journalists in Kosovo who are doing just that – investigating stories that may damage the public interest, in the public interest.

That is not to say that many elements of the press in Kosovo don’t have influence: they do. They shape public opinion, they frame the agenda. They sell stories that the public are interested in. But do they always act in the public interest? Is it really better for the public to know who the witness in a trial is and what he or she says, or is it the final conviction of a wrongdoer that really serves the interest of the public? The answer to this question should be simple.

It is clearly in the public interest for Rule of Law institutions, still in their infancy in Kosovo, to flourish. It is clearly in the public interest that the new laws of Kosovo are allowed to take root. Legal history is being made in Kosovo on a regular basis. We recently saw the first plea-bargains being entered in a human trafficking case. We recently saw the conclusion of the trial on the state’s first co-operative witness. We recently saw the Supreme Court and the Court of Appeals effectively set and then confirm new Kosovo jurisprudence (defining what various laws mean in practice) – on the intimidation of witnesses and obstruction of justice through public comments.

Kosovo’s legal system, like other legal systems, relies on witness testimony.  Witnesses, by their very nature, are vulnerable and often fragile people. They frequently live in fear of delivering testimony. It is in the public interest – the interest of Kosovo - to ensure that any witness is enabled to deliver their testimony.

Unfortunately, it seems the opposite is the case: witness intimidation is rife in this country. What to some people seems a game, to a person who is trying to serve justice when needed, is a life threat. A witness who has made an important decision, to testify and see justice being done, should indeed be praised instead of being publicly intimidated for their courage.

Intimidating a witness is not merely done by directly threatening a person. In a place like Kosovo, a mere publication related to the morality of his/her testimony is enough of an intimidation necessary for them to, refuse to testify or fear for their lives.

It is to be regretted that this has happened in Kosovo. Many journalists believe that they are serving the interest of the public in publishing information that should be kept confidential, such as witnesses, suspects or any other information about the investigation or trial. However, it is indeed standardized in many countries around the world, that in such cases, priority is given to the proceedings. Other countries in the region have Press Codes that recognize this.

For example, in Bosnia and Herzegovina, it specifically notes that Newspapers and periodicals shall generally avoid identifying witnesses in court trials for war crimes, as well as identifying their relatives and friends. The Press Codes of Norway, Austria, Albania, Denmark and Bulgaria all have similar provisions around the privacy of persons involved in court proceedings.

This is done because, indeed, the interest of the public indeed relies upon seeing justice being done, seeing perpetrators sentenced and seeing its society grow with a lower crime rate. And while it is indeed in the public interest to know more about certain major trials, the priority should be that justice is served. A just trial is one that is fair to the public, to the citizens. It is unfair to the public to deny them the right to justice by publicly intimidating witnesses, obstructing evidence and trials, in the name of the people.

With the power of press freedom also comes responsibility. It is morally and ethically wrong and irresponsible to print the names of witnesses, photographs and personal details, which could cause fear for their lives and families and stir public opinion to a level that obstructs justice. Such acts de-motivate people to cooperate with the police and judicial institutions, while the institutions are trying really hard to be trusted with this cooperation. It is unforgiveable and disgraceful to publish inaccurate information about those witnesses. And it damages the public interest of developing strong Rule of Law institutions in Kosovo.

There is a place for polemic. There is space for investigative journalism. But there is no place for willful intimidation of witnesses, past, present and future.  There is no place for obstruction of justice to be done in the name of the people, who indeed are the ones who look forward to seeing a successful trial and conviction of a wrongdoer. The people of Kosovo deserve better. Our judicial institutions, who dedicate their lives to fighting crime, deserve better. The people of Kosovo are interested to see justice being served. The judicial institutions should be enabled to do so.