Justice Delayed In Kosovo
Kosovo is a legal vacuum, with uncertain laws, missing judges and
Justice Delayed In Kosovo
Kosovo is a legal vacuum, with uncertain laws, missing judges and
entire legal framework has become politicised.
By Fred Abrahams in Pristina (BCR No. 96, 26-Nov-99)
Nearly half a year after NATO troops entered Kosovo, the international
community is still struggling to establish the rudiments of a judicial
system. Under-funding, bureaucratic labyrinths, institutional rivalries,
and a lack of qualified staff have complicated the already difficult task
of bringing justice to a post-war environment.
Only one district court is functioning, and it has completed two trials.
Most crimes - such as arson, abductions, and murder - go unpunished. There
are still no civil courts anywhere in Kosovo to deal with non-criminal
matters. Criminal elements are clearly entrenching themselves in certain
parts of the province, some of them connected to the former Kosovo
Liberation Army (KLA).
The primary blame rests with the United Nations Mission in Kosovo (UNMIK),
which is supposed to jump-start the entire system, from police to prisons.
Courts are without basic materials, judges are paid absurdly low and
sporadic salaries, and even copies of UNMIK's new laws do not get properly
distributed within Kosovo to those who must enforce them.
A fundamental problem is the reluctance of western governments to provide
enough funds for the mission. But financial concerns are not the only problem.
"Not everything needs money," says Ethem Rugova, the UNMIK-appointed chief
judge of the Prizren district court. The issue, he says, is the lack of
informed international staff and their unhurried pace.
"They come with good salaries and are not interested to finish the work
because they will soon go home," says Rugova. "How else to explain their
slow work?"
The increasingly contentious relationship between local jurists and UNMIK
began with the first legal regulation signed by Kouchner, which dealt with
Kosovo's applicable law.
Signed on July 25, Regulation No. 1 stated that the law "prior to March 24,
1999, shall continue to apply in Kosovo," as long as it does not conflict
with international human rights standards or with the UN resolution, number
1244, which placed Kosovo under international administration and military
protection.
The UN interpreted the regulation to mean that the Serbian criminal code
and Yugoslav criminal procedure code, in effect in Kosovo prior to the
commencement of NATO bombing on March 24, would stay in force.
Although UNMIK's interpretation is in conformity with international law,
the failure to state categorically which law was in effect opened the door
for Kosovo Albanian lawyers to argue that UNMIK should recognise the old
Kosovo criminal code, in effect until 1989, when Kosovo's autonomy was
revoked.
The term "prior to," some Albanian lawyers argued, meant anything before
March 24. And for them, the Serbian code was unconstitutionally imposed,
discriminatory against Albanians, and symbolic of the past decade of
repression.
Some newly appointed judges threatened to resign. One judge from Prizren,
A. Krasniqi, said that by forcing the Serbian laws on Kosovo, UNMIK was
"legitimising Serbia's occupation of Kosovo."
The issue came to a head at an August 15 meeting between Kouchner and the
newly appointed judges and prosecutors. At the meeting, Kouchner bowed to
demands that Serbian law not be enforced, thereby contradicting his own
regulation. More importantly, legal experts conclude, he allowed the
Albanian jurists to politicise the judicial process.
There are only minor differences between the Kosovo and Serbian penal code
and, even Albanian lawyers admit, the issue was purely symbolic - and
political.
Until new criminal procedure codes are developed - which could take months,
at a minimum - the confusion over applicable law leaves a vacuum in
Kosovo's legal system.
In some cases, KFOR soldiers and UNMIK police are applying one set of
procedures while the courts are applying another. Some crimes are not
included in the Kosovo code at all, such as war crimes, so even the
Albanian judges must apply Serbian or Yugoslav laws.
Even with a consensus on the law, the courts are in no position to function
normally. As of mid-November, UNMIK had appointed 41 judges and 14
prosecutors for Kosovo's five districts and one Ad Hoc Court of Final
Appeal. But all seven of the new Serbian judges resigned shortly after
their appointment.
Of those judges and prosecutors remaining, 42 are Albanians, four are
Slavic Muslims, one is a Rom (Gypsy), and one is a Turk. Pre-war Kosovo had
approximately 650 judges and prosecutors, although it is generally accepted
that this number was inflated.
None of the new appointees are working in acceptable conditions. The courts
and prosecutors' offices lack the most basic materials, such as paper, let
alone computers. When the Serbian authorities withdrew from Kosovo in June,
they took everything of worth, including court files for the past ten years.
As of mid-November, UNMIK had provided only minimal supplies to some of the
five district courts. The prosecutors office in Pec, for example, has one
manual typewriter, no phone, and a dripping roof. The newly appointed chief
prosecutor, Flamur Kelmendi, who was fired from the Pec office along with
his Albanian colleagues in 1989, must preside over a 450,000-person
district with sporadic electricity and water.
More bewildering is the payment scheme employed by UNMIK. The budget should
be rearranged in January, UNMIK says, with higher salaries and better
supplies. Until then, prosecutors and judges earn approximately 350 marks
per month (180 dollars), and most people have only received two months
worth of stipends. In contrast, a guard at UNMIK headquarters in Pristina
earns 1,100 marks.
But many problems could be solved without additional funds. UNMIK still has
no official gazette, for example, to publish all of Kouchner's new
regulations, delaying the dissemination of new regulations for months.
Institutional rivalries and overlapping responsibilities between the UN and
the Organisation for Security and Cooperation in Europe (OSCE), the two
bodies in UNMIK responsible for the judiciary, further complicate the work.
Security in the courts is virtually non-existent. The Prizren court has
been robbed three times and, at one of the two trials that have taken place
so far, the family of the defendant almost caused a riot when the verdict -
14 years in prison - was read.
As of mid-November, approximately 250 people were in detention, with
military prison facilities in each of Kosovo's five sectors. The detention
facilities are better than they were under the Serbian government, Albanian
defence lawyers say, and detainees are visited by representatives of the
Red Cross and the OSCE.
But there are still no proper facilities for juveniles or the mentally
disturbed.
Of those in detention, 14 people are accused of war crimes - three of them
Roma and the rest Serbs. If as seems likely they face trial in Kosovo,
rather than The Hague, there is serious concern about their right to a fair
trial. The OSCE has proposed bringing in international judges.
Thus far, 22 criminal trials have begun in Prizren, which is the only
district court currently with the lay judges that are required for trial.
The law stipulations that individuals under investigation must be brought
to trial within 6 months of arrest, and that police involved in a case must
provide statements to the investigating judge in person. This will be
difficult for KFOR soldiers or UNMIK police who have been transferred out
of Kosovo before a case goes to court - yet one more obstacle that will
delay justice in Kosovo.
Fred Abrahams is a senior researcher covering the Balkans for Human Rights
Watch. A recent report on the legal environment in Kosovo from the Lawyer's
Committee for Human Rights can be found at
