EU Law Mission Should Retain Lead in Sensitive Cases
April 24, 2014
Kosovo’s parliament took a bold and important step to help ensure justice for past crimes. We hope the next parliament will keep the momentum, make the needed legal changes, and show that Kosovo is guided by the principles of justice and rule of law.
Lotte Leicht, EU advocacy director

(Brussels) – The Kosovo parliament’s approval on April 23, 2014, of a special court for serious abuses during and after the 1998-1999 Kosovo war is a step for justice and the rule of law, Human Rights Watch said today.

To make the court operational with a special chamber abroad, the parliament still has to approve the court’s statute and pass some statutory and constitutional amendments. The new parliament formed after elections expected in May should urgently make these changes.

“Kosovo’s parliament took a bold and important step to help ensure justice for past crimes,” said Lotte Leicht, EU advocacy director at Human Rights Watch. “We hope the next parliament will keep the momentum, make the needed legal changes, and show that Kosovo is guided by the principles of justice and rule of law.”

Parliament approved the special court by a vote of 82 to 22, with 2 abstentions. In another vote, it approved the details of a two-year extension for the EU rule of law mission (EULEX), 78 to 18, with 2 abstentions.

The EU and the US government had strongly encouraged Kosovo’s government and political parties to approve the special court and the EULEX mandate extension.

The law on the EULEX mandate will limit the mission’s handling of sensitive cases. Under the new system, in both criminal and civil cases, EULEX judges will be in the minority when sitting on mixed panels with Kosovo judges, unless EULEX requests a majority, supported by evidence.

EULEX prosecutors will be “integrated” into the Kosovo State Prosecutor’s Office, answering to the local chief state prosecutor. EULEX prosecutors can only take on new cases in “extraordinary circumstances,” after approval by the competent EULEX authority and the chief state prosecutor. This will allow the chief state prosecutor to reject the request for EULEX prosecutors to handle a case. “Extraordinary circumstances” are not defined in the law.

Despite progress in recent years, the justice system in Kosovo remains weak, with inadequate security for judges, court staff, prosecutors, and plaintiffs. The risk of interference with the independence of the judiciary makes it vital for the Kosovo judicial authorities to let EULEX retain jurisdiction in cases involving war crimes, terrorism, organized crime, and serious corruption, Human Rights Watch said.

The special court for wartime abuses will adjudicate cases against individuals based on a 2010 Council of Europe report prepared by a Swiss senator, Dick Marty. The Marty report accused some members of the ethnic Albanian insurgency, the Kosovo Liberation Army (KLA), of abductions, beatings, summary executions, and in some cases, the forced removal of human organs on Albanian territory during and after the 1998-1999 Kosovo war. The report named some individuals currently in the Kosovo government, including Prime Minister Hashim Thaci.

The EU created a Special Investigative Task Force in 2011, headed by a US prosecutor, to investigate the alleged crimes in the Marty report. The task force has yet to release its findings but indictments are expected.

The special court will operate within the Kosovo justice system but, to enhance witness protection and overall security, a chamber with international staff based in an EU member state will be used for proceedings. EULEX will appoint the international judges and prosecutors.

Since 2008, EULEX has played a crucial role in investigating, prosecuting, and adjudicating crimes involving public officials, war crimes, and corruption. In January 2014, 17 international EULEX judges wrote to the head of the EULEX Executive Divisions saying that Kosovo “has not yet reached a stage where the more complex and very sensitive cases, such as war crimes, serious corruption and organised crime should be completely handed over to the local judiciary.”

“International judges and prosecutors play a crucial part in building the rule of law in Kosovo,” Leicht said, “EULEX remains vital for sensitive cases, where pressure on judges and prosecutors is greatest, and the risk of impunity is acute.”

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