What is behind the decision to transfer prisoners from Denmark to Kosovo

The decision caused reactions and objections from a number of human rights organizations and legal experts who think that in Kosovo it is not possible to respect and apply the laws that apply in Denmark.

On Thursday, the Assembly of Kosovo ratified the agreement for Denmark to lease a prison in the southern city of Gjilan, in which about 300 Danish prisoners are expected to serve their sentences. This is how Al Jazeera begins the article   about one of the recently commented issues in Kosovo,

In the session, the Assembly approved the draft law on the agreement with Denmark in an accelerated procedure with 86 votes in favor, seven against and no abstentions. In advance, the Government of Kosovo has approved the draft law for the ratification of the contract between Kosovo and Denmark, which foresees the use of the correctional center in Gjilan for the execution of sentences of Danish citizens, for which Denmark will allocate 200 million euros.

The Ministers of Justice of Kosovo and Denmark signed an agreement in 2022 in Copenhagen, after signing a letter of intent in December 2021 for the transfer of 300 prisoners from Denmark to Gjilan.

According to the Treaty, Denmark will not send to Kosovo prisoners convicted of terrorist acts, war crimes and prisoners with diagnosed serious mental disorders who require medical care outside of prison. The contract stipulates that the sentence will be carried out according to Danish rules and in accordance with Denmark's international obligations. Therefore, prisoners will serve their sentence under conditions that generally correspond to prison conditions in Denmark.

Denmark has previously announced that its prison capacity is 100 percent full, as the number of inmates has increased by nearly 20 percent since 2015.

This decision of Denmark caused reactions and objections from a number of human rights organizations and legal experts, who think that in Kosovo it is not possible to respect and apply the laws as applied in Denmark.

The UN Committee against Torture (CAT) in December last year assessed the Danish government's plans to transfer 300 deported prisoners to a prison in Gjilan, due to a lack of resources in Danish prisons. The report reflects the committee's concerns about possible human rights violations and advises the Danish government to cancel its plans.

Does Denmark respect the Convention against Torture?

The CAT monitors whether countries such as Denmark respect the Convention against Torture. The report states that the state must ensure that all detained persons are provided with all basic legal guarantees from the start of detention, both in law and in practice. This includes the right to a lawyer with guaranteed confidentiality during private meetings, including access to free legal aid. It also includes the right to full information about their rights, the reasons for their arrest and any charges against them, in a language they understand and in an accessible manner.

This includes the right to contact a relative or other person of their choice immediately after arrest regarding deprivation of liberty. In cases where this right is limited for legitimate reasons related to an ongoing investigation, such limitations must be established by law, time-limited with a specified maximum duration, and subject to judicial review and independent approval by a superior officer.

In the report, the committee expressed concern about the potential consequences the transfer could have on prisoners' access to health care and family visits. Although the state has announced that the rented prison premises will be subject to Danish law, there is still a risk of possible acts of torture or ill-treatment by prison staff.

There is uncertainty about how violence of this nature will be investigated and monitored. The Committee also expresses concern about the potentially discriminatory nature of this regime, which is allegedly expected to differentiate the treatment of prisoners on the basis of nationality and family situation.

The report concludes that the Danish state should refrain from renting prison facilities in Kosovo and ensure that persons deprived of their liberty are not discriminated against because of their nationality or family situation.

The state must also ensure that all prisoners have access to health care and effective appeals under equal conditions. At the same time, no unreasonable or discriminatory restrictions should be imposed on their right to maintain family ties while in prison.

Concern for human rights

As one of the reasons to oppose the sending of prisoners from Denmark to Kosovo, organizations from Denmark and the world declare that Kosovo is not a member of the UN and the Council of Europe and therefore is not bound by international law according to the Convention of UN against Torture or the European Convention on Human Rights. Even the World Organization Against Torture strongly criticized this agreement.

"Denmark is a key player at the international level when it comes to the fight for human rights and the fundamental right to protection. They have the opportunity to set a good example for the rest of the world, but now they are being led by the worst example," says Helena Sola Martin, a political adviser at the organization.

"It is illusory to think that you can implement this project without violating Denmark's international obligations. This is simply not possible. You cannot ensure that a prison is run from A to Z according to Danish standards. Especially not when Denmark gives up part of its jurisdiction in Kosovo", says Sola Martin.

It states that these are individuals convicted under Danish law who must serve their sentence under Danish law on Danish soil. According to her, Denmark is in practice trying to violate its international obligations.

The Institute for Human Rights and Dignity questioned how the scheme would be implemented in practice "under the same conditions as in a Danish prison" and in line with Denmark's international obligations.

Prior to the signing of the contract, the Danish Correctional Service visited the prison in Gjilan and found that, among other things, there is mold, that the drinking water smells so strongly of chlorine that most prisoners drink bottled water, and that the prison generally shows signs of lack of maintenance.

At the same time, according to the Penal Service, it is a prerequisite that, among other things, kitchens where prisoners can cook and buildings for rest and work are created, so that conditions are more similar to Danish prisons. Therefore, the prison must undergo extensive renovation before it is ready to house Danish prisoners.

Under the original plan, the first prisoners sentenced to deportation were to begin serving their sentences in Kosovo in early 2023. Danish Justice Minister Peter Hummelgaard said in February last year that the plan had been delayed by about two years.

"It could be fully ready in 21 to 26 months, after which time the first prisoners could enter," he explained.

At Amnesty International in Norway, Gerald Kador Folkvord also believes that it is difficult to see how Denmark will be able to meet its international obligations in Kosovo.

He is a political adviser at the Norwegian branch of Amnesty and followed the process when Norway leased prison facilities in the Netherlands a few years ago. The deal eventually drew criticism because it was difficult for Norwegian authorities to keep the charge in a Dutch prison.

Gerald Kador Folkvord points out that the main reason it was thought to work was because both countries were required to respect human rights, while the culture of the prison system in the Netherlands and Norway was very similar. Here, the situation is different in Kosovo, which is not bound by the European Convention on Human Rights.

"When Kosovo is not obliged to respect European conventions on human rights, there is a risk that the standard will be lower for prisoners in Kosovo. Therefore, it is difficult to see how to implement it without violating rights," he says.

Although Denmark does not have jurisdiction in all areas, the government has defended the commitment made by Kosovo in the agreement to fulfill Denmark's international obligations, even when the prisoners are outside Danish jurisdiction.

"The purpose of the large and complicated bill that we have introduced is that we must ensure that the rights and duties of prisoners while serving their sentence essentially correspond to those of prisoners sentenced to deportation in prisons in Denmark." , former Minister of Justice Mattias Tesfaye said earlier.

Fear of abuse of the law

According to the current and past governments, prisons in Kosovo should be used exclusively for prisoners sentenced to deportation. But the law thus allows the wider use of prisons, which some organizations and politicians have criticized from the beginning as bordering on human rights violations.

"It was not decided that it could be only those who were sentenced to deportation. It could be someone else. It will not be against the law, objections or contract to transfer some others", says Peter Vedel Kessing, professor of international law and senior research associate at the Institute for Human Rights, for the independent Danish portal Altinget.

Eva Smith, professor at the Faculty of Law of the University of Copenhagen, adds that it is worrying that according to the text of the minister and the drafter of the agreement, people who have not been sentenced to deportation from countries outside the EU can be accommodated in Kosovo.

Louise Halleskov, professor of public law at Aarhus University, basically shares the assessment that it is legally possible to send Danish citizens to Kosovo. In addition to the general wording of the law, it refers to the fact that a prisoner is simply defined in the contract as an adult who has been sentenced to Danish imprisonment.

"In other words, the domestic regulations are not limited to persons sentenced to deportation, and the text may also include other persons sentenced to Danish prison who have not been sentenced to deportation. It is much more difficult to answer with absolute certainty whether the law in practice will enable Danish citizens to serve their sentence in Kosovo", Halleskov told the Alting.

According to the Institute for Human Rights, it is essential that prisoners do not suffer a loss of rights when they are transferred to Kosovo.

"One of the very big questions raised by this proposal is whether the Danish authorities will continue to have human rights responsibilities for prisoners, even if they are not on Danish soil," says Louise Holck, director of the Institute.

"Otherwise, we could end up in a situation where a prison officer from Kosovo beats a prisoner or subjects a prisoner to torture, and the prisoner is not protected by human rights and can complain, for example, to the European Court of Human Rights, because Kosovo is not related to human rights. In practice, this means that prisoners risk losing their rights on the flight to Kosovo, unless the authorities ensure that they are protected by the Danish state's human rights obligations," Holck emphasizes.

Amnesty International has called for future agreements between Denmark and Kosovo to make it clear that prisoners will be under Danish jurisdiction at all times and in all places.