Moving Towards an Efficient and Unified Legal System in Kosovo

JURIST Guest Columnist Kushtrim Tolaj, an LL.M. Candidate at the University of Pittsburgh School of Law, is the author of the sixth entry in a 14-part series from the LL.M. students of the University of Pittsburgh School of Law. Tolaj discusses Kosovo's efforts to establish a more efficient judicial system and the challenges it faces in the future...

On February 17, 2008, the Assembly of Kosovo unanimously passed its declaration of independence, announcing Kosovo as an independent, sovereign, democratic, secular and multi-ethnic republic. Since its declaration of independence, Kosovo, the world's newest, independent state, has taken great strides to create an efficient legal system by adopting a modern legal infrastructure. However, Kosovo must overcome obstacles in the northern part of the country in order to unify its legal system.

Kosovo's declaration of independence coincided with major changes in its international oversight arrangement. With an invitation extended by the government of the Republic of Kosovo, the EU established the Rule of Law Mission in Kosovo (EULEX), which deployed around 2,000 EU police, judges, prosecutors and customs officers to the republic. Since the end of the Kosovo War, until the declaration of independence in 2008, these powers had been exercised by the UN Interim Administration Mission in Kosovo (UNMIK). However, in contrast to UNMIK's absolute authority over Kosovar institutions, EULEX's key objective is only to assist, advise and support Kosovar authorities on rule of law matters, specifically those related to the police, judiciary and customs.

The work carried out by the UNMIK allowed the judiciary to resume functioning; however, it did not generate the expected results in establishing an efficient, well-functioning and independent legal system. With the declaration of independence, Kosovo's institutions have undertaken the bulk of the burden in creating a modern legal system in accordance with international standards and comparable to other legal systems in Western European countries. The new and modern Constitution [PDF], adopted in 2008, proclaims the Republic of Kosovo as a representative, democratic republic. Governance is based on the principles of separation of powers and checks and balances. Likewise, the Constitution provides that judicial power is unique, independent, fair, apolitical and impartial. The new Law on Courts [PDF], adopted in 2010, with most of its provisions taking effect in 2013, sets the framework for creating a modern, independent judiciary. This is significant because the judiciary, consistent with old Yugoslav socialist legislation, has not made any developments and has fallen out of step with the nation's reality. Moreover, the new law transforms the structure of the court system into basic courts, the Court of Appeals and the Supreme Court. The new infrastructure is based on the US model and provides for a more structured organization of the courts.

While this entire body of rules creates an adequate modern legal infrastructure, the judiciary still remains weak. During 2009 and 2010, Kosovo's professional judiciary underwent a nationwide Special Appointment Process. This process was meant to eliminate corrupt judges, to minimize political influences and to create a more effective legal system. While essential to the ultimate success of the courts, this process initially slowed the already backlogged courts and negatively impacted the delivery of justice. In addition to meeting the criteria such as a law-abiding background, judges also had to pass an ethics examination as part of their reappointment. Those who failed the ethics examination continued to hear cases until their successors were appointed. After a number of judges left the bench, the remaining judges' caseloads continued to increase, exacerbating the judiciary's unproductive process. Despite this, the positive effect of the new judicial system, although not yet evident, is likely to be seen in the near future. In addition, the adoption of plea bargaining and the institutionalization of alternative dispute resolution methods, such as mediation and arbitration, contribute to the reform efforts. Nevertheless, the effect of these rules in reducing the backlog of cases will be achieved only through their proper implementation and application.

The lack of an effective court system is most evident in the Mitrovica region, where the courts have not functioned since violent protests by the Serbian local minority and the occupation of the courthouse and the prosecutor's office that followed Kosovo's declaration of independence in February 2008. The Mitrovica courts serve more than 200,000 citizens of the Republic of Kosovo and their functioning is uniquely important to the delivery of justice. Currently, only EULEX holds trials there on an ad hoc basis, although the official courthouse remains closed. Upon demolishing the courthouse and destroying and burning court files, the local Serbian minority, with financial support from the government of Serbia, began to operate a parallel court from a house in Northern Mitrovica, outside the legal framework of the Republic of Kosovo. Being in flagrant violation of Kosovo's Constitution, the government refused to recognize the parallel institution and its decisions. Furthermore, its facilities are inadequate to meet the demand for judicial services and the body does not possess the necessary enforcement mechanisms. As a result, its decisions remain mere pieces of paper.

These political uncertainties in the north of the country created a number of other difficulties. As a consequence, the Albanian judges and other court staff continued their work in the facilities of the courthouse in the city of Vushtrri. However, this courthouse is small and cannot accommodate all the judges, forcing them to perform their duties on rotational working hours as an attempt to create minimum working conditions. The prosecutor's office experiences an identical situation; thus the prosecutors can barely investigate all the cases in the area. Similarly, EULEX prosecutors conduct their investigations on a limited basis. This situation reflects the severe state of the judiciary, especially as the chaos in the district fosters a number of human rights violations. The rights, such as access to justice and speedy trial, are consistently violated; moreover many cases are prescribed resulting in breaches of the right to trial of the residents. Furthermore, the EULEX judges and prosecutors who perform their duties on a limited basis only handle high profile emergency cases. Consequently, this state of disorder and confusion deteriorates our legal system's efficiency.

Additionally, the border between Kosovo and Serbia, in the Northern Mitrovica, remains a black hole. Notwithstanding enjoyment of the vast number of rights that may not be found in other jurisdictions in Europe, such as participation in governmental and judicial institutions, and the provision of reserved seats in the Parliament, the Serbian minority has continuously rejected the legal framework of the Republic of Kosovo. Although Kosovo security forces and customs agents operate jointly with EULEX police at border checkpoints, the Kosovo Government and international institutions have reported that the border with Serbia is a systematic source of smuggling, tax evasion and organized crime from which Kosovo's economy suffers severely. In addition, the lack of proper functioning of the judiciary in the area enables this underworld business to grow. During the past several years, violent Serbian minority groups have set checkpoints on fire at the border, including in a recent attack in July 2011. Outrageously, it is believed that the international community has tolerated this anarchic situation for many years in order to avoid renewed tensions in the Balkans. In July 2011, the government of Kosovo attempted to establish rule of law in the area by seizing full control of the border and placing customs agents and police forces at the checkpoints. As a result of their deployment, the situation has improved, but still remains tense with Serbian groups impeding freedom of movement by using rocks and wood to barricade roads throughout the northern part of the city.

Finally, the limited functionality of courts and prosecutors' offices in the north represents a lasting problem with appalling consequences for the future of the judicial system. The government of Kosovo supported by EULEX must urgently address this issue and extend its functionality to this part of the country, in an effort to ensure rule of law for all residents of the Republic of Kosovo. Tolerating this disorderly situation will result in continuous human rights violations and unpredictable and irreparable consequences for the entire functioning of the country.

Kushtrim Tolaj received his bachelor's of law degree from the University of Prishtina in Kosovo, in 2009. Tolaj has worked as a project coordinator for Iniciativa Vizionare Rinore, a Kosovar NGO, as a coordinator of legal education reform and as a staff attorney at the American Bar Association Rule of Law Initiative in Prishtina. Tolaj has also worked as a Customs Agent for the Republic of Kosovo.

Suggested citation: Kushtrim Tolaj, Moving Towards an Efficient and Unified Legal System in Kosovo, JURIST - Dateline, May 8, 2012, http://jurist.org/dateline/2012/03/kushtrim-tolaj-kosovo-judiciary.php.



This article was prepared for publication by Elizabeth Imbarlina, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

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