The issue of national identity is taken seriously by Balkan people – including the least serious among them.
REPORT: Monitoring the Courts
Author: Fatmire Tërdevci
Monitors: Betim Musliu, Isa Gacaferi, Jusuf Thaçi, Faton Ademi, Valdrin Beka, Fatmire Haliti, Edona Musa and Besiana Gashi
Editors: Jeta Xharra, Tom Fuller
Acknowledgments:
BIRN thanks the following organizations for the financial support that has made the monitoring project possible: Rockefeller Brothers Fund, Charles Stewart Mott Foundation, Balkan Trust for Democracy and the European Commission.
The monitoring project is facilitated by the assistance of the following local nongovernmental organizations: “Syri i Vizionit” in Peja, “Community Building Mitrovica” in Mitrovica and “Inpo” in Ferizaj. These organizations not only assisted BIRN monitors with working space and facilities, but also with collaboration and information.
BIRN also thanks the following individuals for their helpful comments and suggestions: Rexhep Haxhimusa, President of the Supreme Court, Ismet Kabashi, head of the Prosecutors Association, Ismet Salihu, professor of University of Prishtina’s law faculty, Kujtim Kerveshi, legal expert, Musa Dragusha, President of the Kosovo Chamber of Advocates, Hamdi Ibrahimi, judge at Prishtina District Court, Veton Vula, director of the Department of Investigations at the Ombudsperson Institution, Florin Vertopi, lawyer, and Fatos Haziri of the Kosovo Police.
BIRN also extends its thanks to the Kosovo Judicial Council for accrediting the monitors and to staff of the courts where monitoring took place, for granting access.
Contents
- EXECUTIVE SUMMARY
- METHODOLOGY
- BACKGROUND TO THE PROBLEM
- INTRODUCTION
- POOR MANAGEMENT OF LEGAL CASES
- FAILURE OF LAWYERS, PROSECUTORS, WITNESSES AND DEFENDENTS TO PARTICIPATE IN TRIALS
- PROBLEMS BETWEEN THE COURTS AND SECRETARIAT OF THE KOSOVO JUDICIAL COUNCIL (SKJC)
- DIVIDING RESPONSIBILITIES BETWEEN THE JUDICIAL COUNCIL OF KOSOVO AND THE MINISTRY OF JUSTICE
- ON BREACHES OF THE RULES AND OTHER VIOLATIONS IN THE JUDICIAL SYSTEM IN GENERAL
- Participation of public prosecutors in multiple trials simultaneously
- Trials held in judges’ offices
- Use of mobile telephones during trials
- Holding trials without translation for minority parties
- Inefficiency of court-appointed lawyers
- Failure by prosecutors and judges to wear uniform during trials
- Failure to use electronic equipment in courts
- Lack of judicial police
- Lack of transparency in the courts
- Lack of an effective quality control mechanism for the work of the courts
- Process of re-evaluating judges and prosecutors
- Legal education and the failure to hold Bar examinations
- CASES OF SUSPECTED ABUSE BY JUDGES
- RECOMMENDATIONS
EXECUTIVE SUMMARY
A weak judicial system is one of the key problems confronting Kosovar society. Ten years after the end of the war, thousands of cases remain open, resulting in high levels of public dissatisfaction and directly contributing to social insecurity.
Research and reports by international organisations have shown that Kosovo’s courts are the institutions suffering the highest level of corruption and public dissatisfaction. Indeed, the level of satisfaction with Kosovo’s courts stands at 20%, making them the lowest-ranking institution in terms of public satisfaction .
This report is a presentation of BIRN’s findings, based on intensive and consistent monitoring. It was produced in order to identify the problems faced in the daily work of judges.
BIRN’s monitoring has shown that many cases remain open for a protracted period, or are not heard within a reasonable time-frame, due to poor management by the judicial administration, delays in starting proceedings and even the failure of parties to turn up, amongst other reasons. This monitoring has also revealed another aspect of the judicial system: the corruption and poor management of judges. It further demonstrates a series of other violations, including significant breaches of protocol for trials.
The violations noted during the monitoring can be grouped into violations of ‘absolute’ and ‘relative’ importance, but there are also observations about the poor management of judges or judicial administrators and legal processes in general .
Monitors present at judicial sessions have often seen cases where prosecutors participate in various trials simultaneously; in which judges, prosecutors, and lawyers in particular, use mobile telephones during trials; in which judges hold trials in their offices even when court rooms are available; the failure to use electronic equipment even by courts equipped with it; and the failure of the judging body and prosecutors to wear uniform.
Furthermore, thousands of sentences have not been enforced, despite being declared (especially in civil cases), which makes the rule of law in Kosovo more fragile. The Annual Report of the Kosovo Judicial Council (KJC) states that, of the 522,573 cases processed during 2008, 312,379 have been heard, while 210,194 remain open.
Another problem with Kosovo’s legal system is that judges are paid very little. While in other states, the salary of the head of the Supreme Court is almost equivalent to the salary of the President of the State, the salary of the head of the Kosovo Supreme Court is €775.60 (gross), whereas the salary of the President is €3,400.
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METHODOLOGY
BIRN’s monitoring report is based on data collected from 600 questionnaires completed between March 2008 and March 2009. These questionnaires were filled out based on monitors’ observations during trials and interviews with the parties involved in the legal.
The questionnaires provide the quantitative aspect of the data gathered, with the project’s qualitative information gathered from interviews conducted with heads of courts, court administrators, lawyers, other court staff, officials from the KJC and parties involved in legal cases.
Over the one-year period studied, a total of 60 interviews were conducted. Due to financial restrictions, the project was confined to the regular courts in Prishtina, Peja, Mitrovica, Ferizaj, Vushtrri and Skenderaj .
The project’s scope included monitoring the work of domestic judges and, after the start of the work of the European mission for the rule of law (EULEX), some trials led by EULEX judges.
In order to protect the identity of the parties in judicial cases, as well as some judges and other participants, this report refers to them only by their initials.
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BACKGROUND TO THE PROBLEM
BIRN organised the ‘Monitoring the Courts’ project because of the importance of the rule of law in Kosovo’s society. In its narrowest sense, the ‘rule of law’ refers to the quality of the work of the courts, and this can have a major effect on a society’s economy, including the level of foreign investment, and security in general. Of particular importance is the impact the state of the rule of law has upon Kosovo’s integration processes with international and regional organisations.
Kosovo, as an autonomous region based on the Constitution of 1974, enjoyed substantial rights, having its own assembly, judicial system, Supreme Court and Constitutional Court.
In 1989, the Constitution was changed, revoking the autonomy guaranteed to Kosovo in the 1974 Constitution. As a result, the judicial sector was constantly subject to political pressures. In the beginning, during a period of great social and political change, those people in Kosovo who exercised their rights to freedom of expression and assembly were judged and persecuted because of their convictions or ethnicity, as part of a systematic repression. Such people were tried and persecuted by the judges and public prosecutors of the region at that time.
The 1990s witnessed the creation of a parallel system and, in most, but not all, cases, Albanian judges and prosecutors were expelled from their jobs.
With the end of the war in 1999, the administration of the judicial sector was conducted as part of Kosovo’s emergency reconstruction, within an institutional vacuum. The sector’s responsibilities were gathered together in the so-called ‘First Pillar’ of the UN structure, which dealt with policing and justice. In the beginning, the field of justice was within the competences of the UNMIK Department for Legal Issues and the Kosovo Joint Interim Administrative Structure, which together led the Administrative Department of Justice. In May 2000, the Department of Justice was formed by UNMIK.
After the creation of the Kosovo government in March 2002, specific administrative competences for the organisation of legal administration were transferred to the Ministry of Public Services’ Department of Judicial Administration (DJA). In this period, up until the promulgation of the Constitution of the Republic of Kosovo in 2008, judges and prosecutors were selected by a commission of the Kosovo Assembly and appointed by the Special Representative of the Secretary General (SRSG), who was the highest authority, with powers over the appointment and removal of officials.
Since, for many years, it had not been possible to organise Bar examinations because the regime had not recognised diplomas from the parallel Law Faculty (1990-1999), appointments after the war could only include former judges and former prosecutors or jurists who had completed their Bar examinations under the previous regime. During the first phase of appointments, the administration of the judicial sector was jointly directed by UNMIK and local authorities.
This phase of appointments was not preceded by an assessment of officials’ ethical and professional values, nor of their past activities whilst exercising their responsibilities.
With the founding of the Ministry of Justice in 2005, a limited subset of the competences in the field of justice passed to this ministry. Also in 2005, the Kosovo Judicial Council was founded as the highest body within Kosovo’s judicial system, responsible for administering the entire system. This body also, like all domestic institutions of that time, was formed under the authority of the SRSG.
During 2006, as anticipated in UNMIK Regulation No 2005/53, after a positive assessment of the results achieved by the new institutions, the SRSG issued a second regulation (No 2006/26), which transferred a further set of responsibilities in the field of the rule of law, broadening the responsibilities of the Ministry of Justice and the Ministry of Internal Affairs.
From this phase, until Kosovo’s declaration of independence in February 2008, the judicial sector was administered by UNMIK, with some responsibilities transferred to domestic institutions.
It should be noted that, from the moment UNMIK’s administration was established in Kosovo, the applicable law was constituted by UNMIK Regulations in addition to laws in force since 22 March 1989, the last date upon which Kosovo enjoyed its autonomy within the Socialist Federal Republic of Yugoslavia. Laws passed after 1989 could be applied only if they related to an issue or situation not covered by any law existing prior to 1989, on the further condition that such a law was not be discriminatory. In addition, later laws issued by the Kosovo Assembly and declared by the SRSG were also valid.
Due to the application of different laws, there have, and continue to be, cases in which legal dispositions clash, weakening legal security in Kosovo and creating significant doubts amongst the professional community regarding the correct implementation of the law and the balancing of these differing dispositions.
Since mid-2004, the legal system began to apply the Provisional Criminal Code and the Provisional Criminal Procedure Code as the two basic laws of criminal justice, approved in accordance with European standards. For some time, Kosovo’s institutions have worked on gathering ideas about the changes necessary for these two codes. This process, despite some alterations last year, cannot be considered complete. A substantial change were amendments to the codes which promoted the use of plea bargaining. The systematisation of this principle in the two criminal codes has made the implementation of laws in the criminal field much easier. Civil law, on the other hand, remains unregulated, with basic laws enacted by the Kosovo Assembly.
After the declaration of independence, a small increase in domestic institutions’ responsibilities can be noted. However, these are not the only institutions in the judicial sector, as EULEX holds executive powers in this field, alongside its monitoring and advisory responsibilities in this and other sectors of the rule of law. Besides a lack of clarity in the creation of a legal basis for this mission, it remains to be seen whether EULEX will implement the applicable law in Kosovo in those areas that the Republic of Kosovo’s institutions have not yet been able to exercise their jurisdiction.
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INTRODUCTION
During BIRN’s monitoring of, and visits to, the courts covered by this project, all the heads of the district and municipal courts explained that the large number of cases still open was due to the restrictively small number of judges.
According to them, judges are burdened with a large number of legal cases, and the failure to appoint new judges, which had previously been a problem for UNMIK’s Department of Justice , is now the responsibility of the Kosovo Assembly, which is not yet appointing new judges.
Perhaps it should be noted that the process of choosing judges and prosecutors in Kosovo is institutionally complex, and has evolved out of structures in which the UNMIK administration held the key role. Furthermore, UNMIK’s head, the SRSG, held this authority, which was then partly delegated to domestic institutions during the transitional phase, through the founding of the Judicial Council and the inclusion of the Kosovo Assembly. Even at this time, the SRSG took the final decisions, including those passed by the institutions created after the promulgation of the Constitution of the Republic of Kosovo .
In order to reflect the responsibilities guaranteed by the applicable legislation in Kosovo today, its new institutional structures do not only include the responsibilities of the Assembly of the Republic of Kosovo, but also those of the Judicial Council and the President of the Republic of Kosovo. However, it should be emphasised that Kosovo has a small number of judges in comparison with the number of cases and the size of its population. Even so, this project found significant problems affecting the resolution of even those cases in which domestic judges did pass judgements. These problems are not only related to the small number of judges as a proportion of to the population, as a number of other reasons and factors, as highlighted in the Executive Summary, are also involved in the development of a backlog of unresolved cases.
The number of judges also varies according to the structure of the different judicial branches. However, the current structure is expected to be radically reformed, as specified by Kosovo’s Constitution. At the beginning, the judicial institutional reform could not occur because the highest legislation of state, the Constitution, did not exist. However, this is not sufficient explanation for the failure to draft systematic laws on the judicial branch in Kosovo . If Kosovo’s institutions used the absence of the highest political-legal act of the country as their excuse before, it remains to be asked how it is possible that they have still not produced legislation for institutional reform, a year since the deputies of the Kosovo Assembly signed the Constitution of the Republic of Kosovo.
On the basis of BIRN’s analysis, it can be concluded that the process of preparing this legislation is not technically easy, nor is finding a political compromise between the actors included in this process. The absence of legislative policies and regular interventions in draft laws in this field has made it possible for many different projects and experts from international organisations such as USAID, the European Commission (which provides technical assistance), EULEX authorities and the US State Department, to impose their ideas. Such actors’ support appears to be critical due to the absence of local capacities to prepare appropriate legislation. However, some actors, especially EULEX, also have executive responsibilities within the very competencies that these laws intend to regulate.
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POOR MANAGEMENT OF LEGAL CASES
The data gathered by BIRN’s monitors show that almost all trials began late, most often because judges did not arrive on time. (See table no. 4)
While one judge may hear as many as 99 cases in a single month, another might not hear even one. Based on the fact that cases in Kosovo’s judicial system are, in principle, assigned on the basis of order rather any discriminatory criteria, the large variation in the number of cases heard in regular courts raises many questions and presents a challenge for raising the quality of management for the rule of law sector and improving legal security in the near future.
In order to give a clearer impression , the following statistics present the number of cases heard by each judge in the Peja District Court during June 2008.
1. Esat Shala, judge and head of the Peja District Court: 99 cases heard
2. Sudan Gorani, judge: 0 cases heard
3. Ukë Muqaj, judge: 17 cases heard
4. Salih Mekaj, judge: 28 cases heard
5. Muharrem Hoti, judge: 13 cases heard
6. Osman Cucovic, judge: 16 cases heard
7. Muharrem Shala, judge: 23 cases heard
8. Isa Kelmendi, judge: 24 cases heard
9. Hasan Sala, judge: 38 cases heard
It is to be expected that the main phase of an investigation would demand more time than the confirmation of an indictment in criminal cases, or the duration and specification of preparatory sessions . Nevertheless, monitors believed that the extreme variation in the time taken between cases is unjustifiable. According to the head of the Supreme Court, Mr. Rexhep Haxhimusa, during the day, judges are committed for an average of five and a half hours to issues related to their duties.
The main reason for the backlog of cases is that Kosovo’s courts do not work to full capacity; work without deadlines; have poor management systems; lack adequate capacities and, in the executive area, do not have nearly enough personnel to achieve the desired objectives.
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FAILURE OF LAWYERS, PROSECUTORS, WITNESSES AND DEFENDENTS TO PARTICIPATE IN TRIALS
In many cases, the courts fail to inform parties of their obligation to participate in trials. This occurs mainly because they do not know the addresses of witnesses and defendants.
Besides this, during monitoring, it was noticed that the courts often do not adequately inform witnesses about the scheduling of trials, even when they possess correct contact details .
In addition to the routine absence of prosecutors, the judging body and witnesses, trials are also delayed due to the absence of defendants . Obviously, a session has to be delayed if it does not fulfil the essential conditions to proceed . This was not the key issue for this monitoring project, although it was a common enough malpractice as to have a significant negative effect upon the quality of courts’ work.
Delays also occurred because of problems with the transportation of defendants from prison . The competencies in this field have been transferred from the international administration to domestic institutions. The number of cases delayed because of the transfer of persons detained in detention centres, after domestic institutions took control of these responsibilities, are evidence of the low level of cooperation between Kosovo’s security and justice institutions.
Facts and statistics
Out of a total of 513 trials monitored during the year covered by this report, 304 cases began late, 21 were not held at all, and 188 were held on time.
In 114 cases, the reason for the delay, or for not hearing the case at all, was the absence of one or more of the parties; in 56 cases, the judging panel was not complete; some 155 trials were delayed or not held at all due to technical reasons . (See table 5)
These delays and, worse, failures to execute the process at all, cause legal insecurity and reduce public trust in the institutions of justice. Insecurity can be noted through two phenomena: that of citizens taking the law into their own hands, particularly when parties decide to solve their problems through violent means; and also by the eventual time limitation of these and/or other cases.
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PROBLEMS BETWEEN THE COURTS AND SECRETARIAT OF THE KOSOVO JUDICIAL COUNCIL (SKJC)
The administration of the courts is conducted by the Judicial Council. Managerial responsibilities belong to the Secretariat of the Kosovo Judicial Council (SKJC).
The division of competencies between institutions is stipulated in UNMIK Regulations 2005/52 and 2005/53, as well as the Constitution of the Republic of Kosovo.
Beyond this, the normative direction of the responsibilities of these institutions is expected to be regulated by systematic laws on Kosovo’s judiciary, including the courts, prosecution, the Judicial Council and the Prosecutorial Council.
The preparation of these normative frameworks began in 2004, and continues at the time of preparing this report (May 2009). It is known that there have been a number of phases in the preparation of these laws, in addition to serious disputes regarding the structure of the relevant organisations and division of responsibilities in this field. To illustrate this more clearly, it should be noted that, in the early stages, there were disagreements over the establishment of the Judicial and Prosecutorial Inspectorate which, at that time, was the exclusive responsibility of UNMIK. There was disagreement between working group members over whether this unit should stay within the Ministry of Justice, shift to the Executive Agency within the Kosovo Assembly, or be under the authority of the Judicial Council.
At that time, it was argued that, were this unit to be under the umbrella of the Ministry of Justice, the judiciary might become subject to the daily politics of the minister or political groups.
However, should the unit pass to the Kosovo Assembly, there was thought to be a danger of political interference over its functioning, as well as a risk of the unit becoming irrelevant, as there is a widely-held belief that agencies working within the Assembly do not generally achieve significant progress.
On the other hand, if the unit should pass to the Judicial Council, it was believed by some that it would lead to a direct conflict of interests, since the Inspectorate would investigate violations of the ethical code by judges and prosecutors, while they at the same time might be members of the Judicial Council, and would naturally find their cases positively.
In 2008, it was decided that the Judicial and Prosecutorial Inspectorate should remain within the Judicial Council and, as a result, the doubts about its functionality remain the same.
In addition, the process of preparing the legislative framework was not sufficiently transparent. The drafts of these laws were never debated publicly, despite the fact that the Ministry of Justice signed three Memorandums of Understanding . Besides sending the drafts late for debate in working groups, most of the groups’ members were not informed about the contents of the draft laws. Usually, working groups constitute government members (legal officials) and officials from technical assistance projects. No-one from civil society or any well-regarded organisation that monitors the development of legislative policies was invited to these working groups.
Facts and statistics
The main problem with the Secretariat of the Kosovo Judicial Council (SKJC), according to the heads of district and municipal courts, is related to the power of appointment for courts’ administrative staff.
During meetings with the heads of the courts, all expressed similar dissatisfaction with their lack of authority over the selection of administrative staff. As a result, they said, it is impossible to administer, discipline or punish civil staff, even when they work inefficiently . However, the head of the SKJC, Halit Muharremi, said that the appointment of administrative staff is done on the basis of employment legislation for civil staff. The SKJC, said Muharremi, chooses civil administrative staff via a commission made up of five members of the central administration and the relevant court .
Another problem highlighted by the heads of the courts was the limited use of trainees . However, this was also rejected by Muharremi, who said that 76 trainees have been assigned to courts for the calendar year, for as long as their traineeship lasts.
During the monitoring, it was concluded that a process of teaching trainees and professional co-workers about all legal instances is necessary for the reform of the judicial sector in Kosovo. During its reform, the judicial sector will require new candidates. These candidates must learn to deal with concrete, practical problems. Having a sufficient number of trainees and co-workers can release judges from laborious duties related to the preparation of written statements and technical work, which apprentices and co-workers could accomplish without great difficulty, once they have followed the work of the courts for a short period.
Since judicial administration is centralised, it seems that the selection of trainees and co-workers causes disagreements over the management of the courts’ human and financial resources.
Embracing a method of selecting co-workers or trainees from the central level of the SKJC, or choosing them from courts they have applied to, does not solve the problem. Only a form of decentralised management, in conjunction with the delegation of responsibilities and stringent evaluations, can make judicial administration efficient.
In addition, in order to increase the number of trainees and co-workers in general, more workspace must be created.
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DIVIDING RESPONSIBILITIES BETWEEN THE JUDICIAL COUNCIL OF KOSOVO AND THE MINISTRY OF JUSTICE
Some competencies of the UNMIK Department of Justice were transferred to domestic institutions such as the Judicial Inspectorate and the Auditing Unit of Judges. Competencies were also passed to the KJC, whilst the Special Chamber of the Supreme Court and the Office of the Special Prosecutor retain certain competencies, according to EULEX’s executive power. Responsibilities relating to international judicial cooperation have passed to Kosovo’s Ministry of Justice.
According to Muharremi, this division of responsibilities in the judicial sector has strengthened the belief that legal jurisdictions may be confused between the Ministry of Justice and the KJC, and that that would be contrary to Kosovo’s Constitution .
The inclusion of members of the government’s executive and legislative bodies, as well as representatives of public administration, in the KJC constitutes another violation. This is in accordance with Regulation No 52/05 of the SRSG for the formation of the KJC, but in violation of the Law on the Provisional Constitution of the Kosovo Judicial Council, which entered into force on 30 January 2009 .
The current membership is temporary, intended only to last until the completion of the re-evaluation process for judges in Kosovo. This will end the conflict between the norms of Article 108, clause 6 of Kosovo’s Constitution and Article 151, upon which the membership of the current, provisional council is based.
On the basis of Article 108, the constitution of the Judicial Council does not guarantee the independence of the judiciary, as is demanded in Opinion No. 11 of the Council of Europe. This Opinion, amongst others, demands that the constitution of the highest bodies of the judicial administration should ensure total independence from executive and legislative authorities. As a result, continuing to reserve places for members of the executive and legislative on the Judicial Council in future will hamper its independence.
In contrast to this general division, a connection exists between the Kosovo Government and the prosecutorial system . On the basis of UNMIK Regulation No 2005/53, annex XV, clause (iii), the Ministry will:
Provide guidance in respect of the development and implementation of the prosecutorial policy of the Office of the Public Prosecutor of Kosovo, which shall not limit, hamper or interfere in any way with the operations of the Office of the Public Prosecutor and the conduct of criminal investigations.
The Ministry of Justice also has a role in the advancement of public prosecutors through the Judicial Institute, whereas, on the basis of clause (ii) of the same regulation, regarding management, the Ministry of Justice will:
Manage, in cooperation with the Ministry of Finance and Economy, administrative, financial and budgetary affairs of the Ministry, and the development of administrative, technical and financial rules and rules governing support personnel and material resources to ensure the effective functioning of the prosecutorial system without limiting, hampering or interfering in any way with the operations of the Office of the Public Prosecutor and the conduct of criminal investigations.
Bearing in mind the nature of this monitoring project, which was limited to the role of judges and phenomena noticed in the administration of their duties, it should be briefly added that Kosovo’s executive has undeniable authority over the public prosecution and its administration. The fact that the Ministry of Justice administers the prosecution directly affects the work of Kosovo’s public prosecution. It has resulted in a lack of equipment, the common phenomenon of the public prosecution shifting responsibility and accountability directly onto the Ministry of Justice for not creating suitable working conditions for prosecutors, and the continued failure to fight the many manifestations of crime, particularly organised crime, present in Kosovo.
The lack of progress in the administration of the prosecution, along with the failure to develop prosecutorial policies, must be addressed by the Ministry of Justice.
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ON BREACHES OF THE RULES AND OTHER VIOLATIONS IN THE JUDICIAL SYSTEM IN GENERAL
As there were a variety of different problems affecting the effective working of the courts, we have classified the issues into the following categories: obstacles to the maintenance of procedures, violations of the criminal code and non-compliance with courts’ internal regulations.
1) Participation of public prosecutors in multiple trials simultaneously
In a trial held on 2 June 2008 in the municipal court in Peja, the public prosecutor left the judicial hearing without giving any reason.
Similarly, in Vushtrri, during trials held in the second week of June, P.11/2008 and P.62/2008, the public prosecutor went from one trial to another, taking part in both at the same time.
With regard to these cases mentioned above, it should be emphasised that attending to numerous trials simultaneously will lower a prosecutor’s productivity and the level of argument he is obliged to give in each court’s proceedings, as he will be dealing with charges he himself raised against the defendants. Furthermore, it seems very odd that some prosecutors do not manage to follow any of the cases they have been assigned, whilst others can follow more than one case at the same time!
2) Trials held in judges’ offices
One of the main principles of the courts is that trials should be open, except when explicitly decided otherwise . Yet, according to our monitoring, a number of cases were held and judged without any public presence, even though the decision to make the proceedings private bore no relation to the protection of the interests of the court or the procedural interest of the parties or the public interest.
We have concluded that the majority of trials in municipal courts are held in judges’ offices and not in the courts , which obviously makes participation and observation by the public, on the whole, impossible . Of the 513 trials monitored, 138 were held in courtrooms, whilst 375 were held in judges’ offices (see table 9).
3) Use of mobile telephones during trials
According to BIRN’s monitors, judges, prosecutors and other participants very often used their mobile telephones during judicial sessions, even though such behaviour is prohibited .
As the Republic of Kosovo still has no programme for the protection of witnesses, information, identity, statements and so on, the system is not secure. Our monitors considered that the phenomenon of carrying and communicating using mobile phones in courtrooms while trials are taking place endangers the successful progress of those trials, and could also allow for the transfer of information to ill-intentioned persons, threatening guaranteed privacy.
The nature of communication between the court, the judges and the parties is regulated by law. The presence of mobile phones should be absolutely prohibited, especially as most models of phones have the capacity to record. In addition, the use of any form of communication device during the judicial session should be strictly prohibited.
4) Holding trials without translation for minority parties
Offering, and guaranteeing access to, judicial processes in a language that each party can understand is a standard that all courts should provide for, in accordance with the legal obligations included in Article 30 of the Constitution of the Republic of Kosovo.
Our monitors found evidence of failures to make appropriate provisions in both civil and criminal cases.
For example, in the civil case Cnr 743/07, held in the municipal court of Peja, no translator was present, even though one of the parties involved in the property dispute was a member of the Serb community. Also, no translator was present for case Cnr 825/07/07, also held in the Municipal Court of Peja. In another case from Peja, Cnr 1041/08, the translator left half way during the trial, on the grounds that both parties understood Albanian, even though one of the parties was a member of the Bosnian community, and had not claimed to understand or speak Albanian.
In the criminal case Pnr 114/08, held in the Municipal Court of Peja on 22 September 2008, one of the witnesses, M.W., was Swiss. The documents used as evidence and the declarations of other witnesses were not translated, so M.Ë did not know what had been previously said about the case. Translation was attempted only during the trial .
5) Inefficiency of court-appointed lawyers
BIRN monitors observed that public lawyers did not make contact with their assigned clients before the start of their respective trials.
As an extreme example, in case P no. 28/08, held in the municipal court of Peja, which had been delayed three times previously because of repeated failure to fulfil conditions for due legal process, lawyer B.C. asked the prosecutor which person was his client.
There is no question that Kosovo’s legal institutions should educate staff at correction centres and police stations about relevant jurisprudence, such that defendants can effectively exercise their right to legal defence, including access to public lawyers.
The courts must offer sufficient information to the defence regarding all the important issues and activities undertaken up until that moment.
In cases of criminal justice, we consider that the courts must be open and transparent in providing access to documents and evidence, including police dossiers, involved in the criminal process.
6) Failure by prosecutors and judges to wear uniform during trials
During the year-long period of monitoring, it was noted that no judges, prosecutors or lawyers wore their relevant uniform, with the exceptions of Zyhdi Haziri, a judge in the municipal court of Gjilan, who always wore uniform in his trials, and those officials involved in the case Pnr: 178/08, held on 6 January at the district court of Peja.
7) Failure to use electronic equipment in courts
According to the new Criminal Procedure Code, since 6 April 2004, audio equipment must be used in court to create recordings of proceedings.
However, BIRN monitors gathered evidence that such policies were not being effectively implemented. For example, Sadri Qosja, a judge at the municipal court of Peja, told a BIRN representative that, even though the appropriate equipment had been procured, his court does not use it. Osman Cucovic, another judge at the same court, told a BIRN representative that he had never used the video and audio recorders. Indeed, he and his assistant did not even know how to work them. Lumturie Hoxha, a lawyer, declared that no trial she has taken part in has been recorded.
The USAID project ‘Activity for Reforming the Justice System in Kosovo’ (ARJSK) has encouraged the implementation of the recording policy, testing the use of audio recording equipment in nine courts and one prosecutor’s office. In addition to this project, technical assistance has also been provided by European Agency for Reconstruction projects, through the Court Management Information System (CMIS). CMIS additionally aims to create a system for the automatic registration of cases.
However, despite the equipment procured through the ARJSK project being installed in district and municipal courts across Kosovo, according to monitors it is very rarely used .
Out of the 513 trials monitored, recording equipment was used in only 8 cases (see table 6).
Despite the investment provided through the CMIS project for the digitalisation of statistical data, the municipal and district courts in Peja still produce and archive data on paper.
The head of the municipal court of Peja, Xhelal Radoniqi, said: “We are very old and it would be difficult to apply such a system, because it hasn’t even been achieved technically. Only one judge, Afërdita Mulhaxha, participated in the training.”
However, even those who attended training sessions for handling data in electronic formats do not use it. “I and my assistants have had some training for this project, but nothing concrete changed and we still work with the old system,” Muharrem Shala, a judge at the district court of Peja, told BIRN.
On the registration of cases, Ferit Osmani, a judge at the municipal court of Skenderaj, said that the filing and archiving of cases remains as it was before attempts at digitalisation.
According to the BIRN monitors, trials are also not recorded in the municipal court of Vushtrri, where the district and municipal courts of Mitrovica have been relocated.
Kadrije Lubishtani, administrator of the municipal court in Ferizaj, stated that the first phase of the CMIS project began in 2007 and her court has a computer with new software. However, according to her, the judges’ and clerks’ computers are too old to run this software.
The CMIS project remains unimplemented in the district court of Prishtina.
Over the last three years, staff and judges were trained in the use of the automatic registration system for court cases. However, according to the head of the district court of Prishtina, Anton Nokaj, the system remains non-functional. Nokaj criticized court staff, calling them “lazy”. Also, Nokaj considers the training ineffective and to have been carried out hastily. Feriz Berisha, administrator of the district court of Prishtina, emphasised that only 30 per cent of judges have been prepared for this system, and even they, according to him, do not use it. “Judges still work with the old system. They still believe more in the pencil and writing in a notebook, than in registering data on a computer,” he said.
Berisha says that staff in the district court of Prishtina do not use the available audio recording equipment. “Currently, we have only one such piece of equipment which works; however, it is not used by domestic judges, since international judges usually hold sessions in the room where the equipment is,” he explained. The CMIS project is also not being implemented in the municipal court of Skenderaj. Ferit Osmanit, a judge in this court, said that filing and archiving cases occurs by hand, not in an electronic format .
Besides the lack of staff capability to use the CMIS system, another reason for the failure of realising this project, according to those interviewed, is that courts’ computers are very old, and so the software cannot be used.
When cases are not recorded, there is a strong basis for concern that facts and statements may disappear from official records.
However, whilst planning reforms for court administration and judicial staff in this area, one should bear in mind the lack of will to embrace new standards, as well as the limited equipment and technical skills available.
8) Lack of judicial police
According to the Criminal Procedure Code, the prosecutor is obliged to lead the development of investigations.
In most cases, investigative duties should be performed by the Judicial Police. However, this police unit has not yet been founded.
This work is currently conducted by members of the Investigative Unit of the Kosovo Police (KP).
The lack of a judicial police force limits the efficiency of prosecutors and the courts.
This can be seen particularly in the loss of material evidence through unprofessional conduct and/or intentional destruction. Such losses result in a different treatment of the case when proceedings continue. Since the Code’s promulgation, the lack of a judicial police force can be noticed mainly in the weakening of disciplinary policies and the failure to punish those who commit criminal acts. It is rare that prosecutors are involved at all in leading investigative procedures.
The easiest method for implementing this part of the Code would be to pass an Administrative Order. On the other hand, creating a judicial police force would require an increase in the human capacities of the Kosovo Police.
The continued failure to create a judicial police unit is one of the reasons for the inability to, for example, solve the 1,400 reported crimes in the municipality of Ferizaj occurring in 2008 alone. The Chief Municipal Prosecutor in Ferizaj, Ekrem Shabani, said that the absence of a functional judicial police to conduct investigations is one reason behind the large number of unsolved crimes in Kosovo.
9) Lack of transparency in the courts
Although BIRN had access in order to monitor trials, the courts are not really transparent. In general, the courts are closed institutions, with the release of each piece of requested information (such as reports of cases heard by judges) requiring the approval of the head of the court, since there are no officials dealing with public relations.
In many cases, monitors reported that notifications and announcements of timetables for trials were not present in the vicinity of courts.
Courts also do not have web pages where the public can learn about the work of the institutions and access (non-confidential) information on particular trials.
10) Lack of an effective quality control mechanism for the work of the courts
The lack of effective quality control for the work of judges, and courts in general, is considered to be one of the major problems permeating the institutions of justice and hindering the reform process.
For example, no mechanism exists for assessing the past decisions and judgements of officials currently suspended for abuse of their position. As earlier noted, monitors reported a case of one head of court who, despite being under investigation for misconduct, continued in the performance of their duties unrestricted and unmonitored. Indeed, no instances of a judge or prosecutor suspected of abuse being subjected to a ‘quality control’ assessment was reported.
BIRN believes that there is a silent ‘amnesty’ towards this phenomenon in the Republic of Kosovo. This silence seems accepted by colleagues in the justice system, augmented by a lack of political will to improve the quality and extent of the rule of law.
11) Process of re-evaluating judges and prosecutors
On the basis of UNMIK Administrative Order no. 2008/2, as well as Article 150 of the Constitution of the Republic of Kosovo, the process of re-appointment is led by the Independent Judicial and Prosecutorial Commission (IJPC), an autonomous body of the KJC.
The process of re-evaluating judges and prosecutors is one of the most important processes for strengthening the rule of law.
On the basis of the reappointment programme, which will last about 22 months , anyone reapplying to serve as a judge or a prosecutor must comply with a system that will analyse their past activities and receive a positive evaluation.
The deadline for applications from those interested in working as judges and prosecutors was scheduled to pass during the preparation of this report.
The re-appointment process is expected to ‘cleanse’ the judiciary of judges who have abused their positions. However, it is not very certain what will happen to those currently active judges who do not re-apply and will, therefore, not be subjected to an inspection of their past.
We believe that the entire judiciary should be ‘scanned’, and that there should be no ‘amnesty’ for any judge or prosecutor, even if he or she decides not to reapply for open positions. In addition, we consider that no judge or prosecutor (even if they do not apply again) should be allowed to work within any legal or state administrative position until the re-evaluation process proves they are professionally suitable and ethically clean. Since the period of re-evaluation for judges and prosecutors is expected to last 22 months, the Chamber of Advocates should specify compulsory measures that do not allow current judges and prosecutors to become licensed lawyers in the meantime. This is important for the credibility of the profession and to increase trust in other freelance professionals as well.
In terms of public opinion, it is not clear what will happen. It does not appear that the IJPC has produced any significant improvements in public opinion, nor has it taken any satisfactory steps to involve civil society in the process. Improved links with civil society could help with gathering information useful for developing an appropriate evaluation of members of the judiciary.
The number of cases judged stands in the hundreds of thousands, whilst those not heard are increasing in number. Clearly, the IJPC will not be able to comprehensively re-evaluate all cases presided over by judges and prosecutors since they took up their positions. BIRN is therefore convinced that the IJPC’s capacity is not sufficient to complete their task to the high standard we would wish to see.
Examining all cases will require a lot of time, and information from civil society organisations could support this process. In particular, it would be useful to establish a system for gathering and storing confidential information so that all cases of bad management and abuse could be reported and investigated.
12) Legal education and the failure to hold Bar exam
Although the Ministry of Justice is obliged to organise Bar exam at least three times a year, they have not been held since January 2008.
Every judicial reform requires a suitable number of officials capable of replacing those staff who are removed from their positions. Even though the need for judicial reform is understandable in itself, the failure to hold Bar examinations limits the number of those who can apply for judicial work.
In response to these obstructions and violations of the law by the Ministry of Justice, the Independent Judicial and Prosecutorial Commission (IJPC) approved a regulation allowing the submission of preliminary applications by persons who have still not completed their Bar examinations.
However, we cannot find any reason justifying the creation of instruments outside those approved by existing legal regulations. If examinations were organised as prescribed by the Law on Bar Exams, the Commission would have less work creating new options for candidates and, instead, it would be able to focus more on assessing cases, with the quality of new applicants being consequently higher.
NON-ENFORCEMENT OF SENTENCES
Although this project did not deliberately deal with the problem of the non-completion of civil cases in the regular courts, it became clear that, besides delays in resolving cases, one of the biggest problems in the judicial system is the non-enforcement of sentences . This is a problem especially with civil cases and those related to non-payment for public utility services .
Although it was expected that the legislation on enforcement procedures approved last year would help to reduce such outcomes, it seems that this will not start in earnest until a real reform of the judicial sector begins .
In addition to this, according to the head of the municipal court of Prishtina, Nuhi Uka, out of the 20,490 civil cases that reached his court, 1,939 sentences were enforced, while 18,551 cases are still being processed. According to Uka, during the first three months of the year 2009, 1,548 civil cases arrived, but only 491 sentences were enforced.
During 2008, there were 591 criminal cases punishable by imprisonment and, of those, 298 cases actually led to imprisonment (the enforcement of sentences passed in criminal cases is technically easier and, therefore, more likely).
According to Mr. Uka, the main problem leading to the widespread non-enforcement of sentences is that the municipal court of Prishtina has just one official responsible for the enforcement of sentences. According to him, the majority of civil cases (about 80%) in Prishtina relate to demands from municipal enterprises for the payment of electricity, waste, water and heat service bills.
Between 2000 and 2008, in the municipal court of Peja, a total of 11,267 cases were registered, awaiting the enforcement of sentences. According to Hysen Ademi, the court official responsible for enforcement, during 2008, the court staff prepared 3,878 cases for such enforcement, while only 1,012 sentences were actually completed. In the municipal court of Peja, there are five officials responsible for enforcing civil sentences, and two clerks for criminal cases. According to Ademi, the main causes of the backlog are incorrect addresses, the lack of court space to store legal deposits (e.g. there is no space at court to store debtors’ cars), as well as the small number of executors.
One of the factors contributing to the non-collection of fines is the lack of cooperation between financial institutions and the courts. For example, in case Enr:31/08, in which the subject of the case was a debt of €25,000, the court approached Pro Credit Bank for information on the debtor’s current account. The bank informed the court of the debtor’s business account number twice; first, in a memorandum dated 21 February 2008 and again in a memorandum dated 13 March 2008. On 14 March 2008, the court sent the bank an order to transfer funds from the debtor’s account to that of the creditor.
On 17 March 2008, Pro Credit Bank informed the court in a memorandum that the debtor’s account had been blocked by a decision of the Central Banking Authority because of a previous debt and, as a result, no transaction could be made with respect to the court order. In this manner, the court remained unable to punish the criminal because, according to Article 27 of UNMIK Regulation No 2001/26: “A bank shall be bound by confidentiality and shall not disclose any information concerning accounts to anyone except the customer, unless it is required to do so pursuant to a court order or in accordance with the applicable law or pursuant to the customer’s express authorization”. Beqir Muhaxheri, the court official responsible for sentence enforcement, declared that Kosovo’s banks do not respect these regulations and, in most cases, do not allow access to debtors’ accounts, even when they receive court orders.
Between 2000 and 2008, 352 criminal sanctions in Peja municipal court were to be served, but only 197 of them were actually carried out, leaving 155 unpunished.
The head of the municipal court in Ferizaj, Mr. Rifat Abdullahu, told BIRN that the enforcement of sentences is one of the most significant problems in his court. According to him, while the punishment regime for criminal cases is not satisfactory, the system for civil cases “is in true chaos”.
According to the 2008 working report of the municipal court of Ferizaj, 3,660 cases were carried over from the previous year, with a further 2,390 cases accepted during the year. In 2008, 6,050 cases were being processed, while just 604 cases had their sentences passed and enforced.
The municipal court of Gjilan started 2008 with 2,175 outstanding sentences (1,618 civil cases and 557 criminal cases), while, during 2008, 3,130 cases were accepted for the execution of sentences (2,615 civil cases and 515 criminal cases). During 2008, 1,471 sentences were enforced (1,009 civil cases and 462 criminal cases), while 3,834 sentences remained un-enforced (3,224 civil cases and 610 criminal cases).
According to Mr. Artan Arifi, an official in the Enforcement Office, of the 3,224 civil case sentences not yet completed, over 2,000 concern debts owed to the Post Office. “The Post Office, as a creditor, sometimes initiates judicial proceedings for debts of €25 and, because of this, a large number of unpaid compensations are from Post Office debtors,” Arifi said. According to him, the biggest reasons for non-payment of fines are incorrect addresses for debtors and the small number of court officials responsible for enforcement (just four, as of May 2009).
In the municipal court of Vushtrri, between the start of 2005 and the end of 2008, 725 sentences remained un-enforced (no figures were available for the division of criminal and civil cases).
800 cases were carried over from the previous year in the municipal court of Skenderaj, including some involving criminal sanctions with fines and some civil cases. In 2008, 475 sentences were enforced, whilst, in the first five months of 2009, 143 cases have been accepted for enforcement.
According to Isa Shala, a clerk in the Skenderaj municipal court, the main problems affecting the enforcement of sentences are the absence of storage space to hold items, registered evidence and sequestered property; travelling outside the vicinity of the court, especially on rough terrain (the court has just one vehicle); the lack, or incorrect registration, of parties’ addresses; changes to road names causing confusion in registration and the fact that some debtors are outside of Kosovo.
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CASES OF SUSPECTED ABUSE BY JUDGES
Cases of suspected abuse by judges are dealt with by the highest institutions of justice. The Judicial Council has a special unit for dealing with the preparation of cases relating to, amongst other things, the violation of the ethical code of judges and prosecutors. As would be expected, examples of police intervention in the investigation process of such cases were not lacking.
Although, for the moment, the number remains small enough, it appears that Kosovo’s justice system is not free from the problem of cases being concluded on the basis of insufficient proof. Public trust in judicial institutions remains at low levels, despite commitments and investments made with the support of international institutions.
BIRN has specifically investigated the case of the head of the district court of Gjilan, Mr. Ymer Huruglica. Huruglica tried to exercise his influence over the trial of a relative of his, who had been caught with 10kg of heroin. Mr. Huruglica admitted this fact during an episode of BIRN’s ‘Jeta në Kosovë’ (Life in Kosovo) current affairs programme, transmitted on 26 June 2008, on the topic of corruption in the judicial system. The televised report had an immediate impact, as the Office of the Disciplinary Prosecutor (formerly the ‘Judicial Inspector of Kosovo’) began to investigate Mr. Huruglica. However, despite these investigations, Mr. Huruglica continues in his duties as head of the District Court of Gjilan. It is clear that allowing judges or prosecutors under investigation to continue performing their judicial duties severely damages the credibility of both the investigations and the legal decisions and activities of those officials under investigation. This is at least one direct cause for the low level of trust in Kosovo’s judicial institutions. Furthermore, the case of Mr. Huruglica is special because he is also the head of the Kosovo Society of Judges. As of summer 2008, Mr. Huruglica remains under investigation by the Office of the Disciplinary Prosecutor.
An investigative report broadcast as part of the ‘Jeta në Kosovë’ show on 29 May 2008 brought to light a link between Dragan Stamenkovic, and a lawyer, Bajram Krasniqi. The latter had falsified documentation relating to the property rights of an apartment in Prishtina, giving the rights to Stamenkovic. These false documents were verified both by the judge of the municipal court of Prishtina, Nexharije Hoti, and, later by the district court of Prishtina. This verification created a conflict between two individuals, Krasniqi’s client, Mejdi Hajdari, who had bought the apartment from Stamenkovic, and Sylejman Kllokoqi. Both claimed they were the legal owner of the apartment in question, and both had sales contracts verified by the municipal court of Prishtina.
After the transmission of the TV report, the Supreme Court of Kosovo abrogated the decision of both the municipal court and the district court of Prishtina, and the case was returned for re-examination.
In a televised debate on the standard of justice in Kosovo as part of the ‘Jeta në Kosovë’ episode broadcast on 29 October 2008, judge Zahide Gjonaj was proved to have ruled on cases even before they were registered in court. Such malpractice occurred consistently, raising concerns over this particular judge’s possible involvement in corruption. In addition to this, €100 was found in a file of documentation for a case Gjonaj was dealing with. All her trials have been held in her office, where she acted in both the role of judge and that of lawyer for the majority of her clients. These claims were verified by the Office of the Disciplinary Prosecutor.
It is very odd that cases judged by Gjonaj were often concluded within fifteen minutes, in contrast to the average duration for cases, which often take months or years just to be heard. Obviously, amongst these short cases, there could have been non-serious disputes; however, on the grounds that she held sessions in her office, went beyond the competencies of her role as judge and the discovery of money must constitute satisfactory indicators to activate institutional mechanisms within and outside of the Kosovo Judicial Council for investigation. After the report’s broadcast, the Office of the Disciplinary Prosecutor, using the arguments presented in ‘Jeta në Kosovë’ as a basis, re-prepared a dossier on Gjonaj.
This dossier was sent to the KJC for a decision on what further action, if any, to take. However, for reasons unknown, the KJC had not made any ruling as of January 2009 on this and a number of other cases, and, at this time, the mandate of the KJC has been terminated in a decree by the President of the Republic of Kosovo, in accordance with the transitional dispositions of the Constitution of the Republic of Kosovo .
An investigative report broadcast as part of the “Jeta në Kosovë” show on 4 April 2008, revealed the corruption at Gjilan Municipal Court. The case was related to a trial on attempted murder, which took place during a shooting between two local gangs in Gjilan. BIRN revealed that despite police and prosecution office efforts, the members of E7 and GG gangs remained free due to the corruption at the judiciary. By examining the case of the attempted murder, related to an intentional car accident and the shooting, BIRN secretly filmed the judge of this court Refki Halili, who admitted that due to the family relations, he reduced the sentence of the persons involved in the incident. As a consequence of this, the criminal act of attempted murder and the one of illegal possession of weapons was changed by the judge into the disturbance of public order by sentencing the involved persons with only five months imprisonment. Whereas according to Kosovo Criminal Code, the minimum sentence for attempted murder is seven months imprisonment, while the minimum sentence for illegal possession of weapons is six months imprisonment. The report includes the interview with judge Halili, the sequences of the interview with him filmed with hidden camera, interviews with persons involved in the incident, who confirmed and admitted the charges as well as the interviews with the police, which said that because of the corruption at the courts, they arrest the same people over and over again.
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RECOMMENDATIONS
For easier reference, general recommendations addressed to the competent authorities are listed below:
Recommendations for the Parliament of the Republic of Kosovo:
The Parliamentary Commission for Legislation and Justice should begin issuing judicial legislation and monitor its implementation.
The Kosovo Assembly should engage civil and academic society in improving the quality of draft acts on judicial matters.
Recommendations for the Government of the Republic of Kosovo:
As the sponsor of the compilation of legislation, the Government of Kosovo should quickly submit to the Assembly a draft law on the courts, a draft law on the organisation of the judicial council, a draft law on the public prosecutor and a draft law on the organisation of the prosecutorial council.
The Government of Kosovo should prepare new legislation, and amend existing legislation, on civil justice, not signed by the SRSG (as was required under UNMIK). Priorities include the law on obligations and the law on existing rights.
The Government of Kosovo should amend the laws for enforcement procedures, in order to improve the legislation and strengthen the mechanisms for enforcing sentences.
The Ministry of Justice should urgently undertake adequate measures to ensure the implementation of the law on public notaries, the law on the enforcement of criminal sanctions, the law on mediation, the law on organisation and the holding of Bar examinations.
The Ministry of Justice should prepare the legal infrastructure for the establishment of a judicial police unit, which is one of the most urgent obligations of this ministry, in cooperation with the Ministry of Internal Affairs.
The Government of Kosovo should guarantee transparency in the preparation of legislation. Interest groups should be involved from the first phase of preparation.
The Government of Kosovo must set aside a larger budget for the justice sector.
The Government of Kosovo should finance the construction of better working spaces for the courts.
The Government of Kosovo must increase the physical security of judges and prosecutors.
The Government of Kosovo should provide dignified salaries for judges, in line with other branches of the government.
The Government of Kosovo must secure resources for witness protection.
The administration of those competencies divided between the Ministry of Justice and the Kosovo Police, such as transporting those under arrest, must be conducted with the utmost level of care.
The Government of the Republic of Kosovo should coordinate donations for the field of justice.
Recommendations for the Judicial Council
The Judicial Council must develop more effective mechanisms of quality control and evaluation of the management of cases appearing before the courts, since the number of cases that remain open is increasing, whilst the number of judges is decreasing.
The Judicial Council should require courts to process cases using the automatic registration system.
The judging panel, regardless of the level of the court, must inform the chief prosecutor every time a prosecutor assigned to a case does not attend court when required. This information should be held in an official register and be used in the evaluation of the quality of the prosecutor’s work.
The head of the court, regardless of the level of the court, should control the working pattern of judges. The imbalances between judges’ workload must be addressed, and measures to reduce this undertaken. In extreme cases, judges should be disciplined and removed from office.
The Judicial Council should ensure that the administration of human resources occurs on the basis of a dispersed management system at court level.
The Judicial Council must be active in the process of developing Kosovo’s legal infrastructure in accordance with the country’s Constitution and the Opinions of the Council of Europe.
The Judicial Council must put in place, and enforce the implementation of, strict regulations prohibiting the use of all communication devices, such as mobile phones, inside judicial buildings.
The Judicial Council should demand respect for the uniforms of judicial officials involved in court proceedings.
The Judicial Council should require that the organisation of trials be conducted in court rooms, so that all relevant parties are given a fair opportunity to comment and disagree. Offices are not court rooms!
The Judicial Council should ensure that courts offer access to proceedings in a language understood by each party, in accordance with the legal obligations deriving from Article 30 of the Constitution of the Republic of Kosovo.
Recommendations for the Police of the Republic of Kosovo
The Police of the Republic of Kosovo must take care that, whilst investigating abuse by judges of their official role, they also monitor the official under investigation’s activity in other cases, both those which have been concluded and those which remain open.
Whenever a prosecutor is not present, as required by law, the Kosovo Police should report them to the Chief Public Prosecutor, for as long as institutions for administering prosecutors do not exist. This information must be held in an official register and be used in the evaluation of the prosecutor’s work.
Recommendations for donors:
The re-evaluation of judges and prosecutors must be a transparent process. It should be open to the media, civil society and those bodies that are able to help in the successful realisation of the re-evaluation programme.
Donors should give donations in accordance with identified requirements in a well-coordinated fashion, in order to avoid doubling up donations.
Donors should give assistance only where the capacity to absorb it exists.
This publication has been produced with the assistance of the European Union. The contents of this publication are the sole responsibility of BIRN and can in no way be taken to reflect the views of the European Union."
