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Introduction

In May 2006 Human Rights Watch released “Not on the Agenda: The Continuing Failure to Address Accountability in Kosovo Post-March 2004,” a report examining the Kosovo criminal justice system through the lens of cases related to ethnically-motivated riots in March 2004 and their adjudication.

The report analyzed the failure to bring to justice many of those responsible for the violence in March 2004. Key factors included: the failure of a special international police operation disconnected from the rest of the justice system, and ineffective policing generally; an insufficient response to allegations of Kosovo Police Service misconduct during the riots; passivity on the part of prosecutors; poor case management and lenient sentencing practices in the courts; and inadequate oversight.

It is now widely accepted that the justice system is “the weakest of Kosovo’s institutions.”¹ That reality is reflected in the decision of the European Union to focus the efforts of its ESDP mission to Kosovo (EULEX) on police and justice issues. There is also recognition that the response to the March 2004 cases in particular was inadequate. Then-UN Secretary-General Kofi Annan acknowledged in a September 2006 report to the Security Council on Kosovo “insufficient progress has been made in investigating and prosecuting cases related to the violence of March 2004.”²

At the time of publication of the 2006 Human Rights Watch report, international prosecutors and judges had jurisdiction over 56 of the most serious March-related cases (differences between OSCE and UNMIK counting methods made it impossible at the time to clarify the number of defendants involved). As of March 2006, according to UNMIK statistics, 13 of those cases had resulted in final decisions, 12 had been dismissed, terminated or closed, and 2 were pending. The remaining 29 cases had yet to reach the pretrial investigation phase. Seven of those 29 cases were handed to national prosecutors in early 2006 to see whether they could progress them.³

By the end of January 2008 the picture appeared to have improved. Thirty-five defendants had been convicted on charges of arson, looting, inciting racial, religious and ethnic hatred, and assault, in cases managed mainly by international prosecutors.⁴ According to UNMIK, 33 of the 35 were defendants in the original 56 serious cases (which involved a total of 63 defendants). Fourteen of those convicted received prison terms ranging from six months to 18 years; the rest received suspended sentences or fines. One defendant was acquitted. Decisions against 19 of those convicted are final (no further appeal being possible).

While comparisons are difficult (because of the variations in the way cases are counted), it is clear that there has been some progress on prosecution of the most serious March-related crimes since the publication of the 2006 Human Rights Watch report. But it is also notable that almost four years after the events, verdicts have yet to be reached in the case of around half of the defendants from the original 56 cases.

Moreover, many of the systemic problems that underlay the problematic treatment of the March cases remain the same, or have seen little improvement. As the EU rule of law mission begins its work, it is a suitable moment to look at the progress on some of the key problems identified in “Not on the Agenda,” in order to assist the domestic and international authorities in Kosovo to correctly identify priorities and effectively tackle systemic weaknesses in the justice system.