RAPORTI VJETOR I MONITORIMIT TE GJYKATAVE COURT MONITORING ANNUAL REPORT GODISNJI IZVESTAJ O MONITORINGU SUDOVA

Transcription

1 RAPORTI VJETOR I MONITORIMIT TE GJYKATAVE COURT MONITORING ANNUAL GODISNJI IZVESTAJ O MONITORINGU SUDOVA Prishtinë, Qershor 2012 Pristina, June 2012 Pristina, Juni 2012

2 Written by: Genc Nimoni, Monitoring Project Coordinator Researchers/Monitors: F l o r e n t S p a h i j a, P e t r i t Kryeziu, Besiana Gashi, Vlora Osmani, Erëlehta Popaj, Ukë Selimaj, Arlind Loxha, Qazim Hasanaj, R idvan Ismaili, Avdyl Beqiri, Ardian Lulaj, Le a r t K r y e z i u, M ë r g i m e Ujkani. Project Manager: Faik Ispahiu, Direc tor of I n t e r n e w s K o s o v a d h e Executive Producer of Jeta në Kosovë and Drejtësia në Kosovë TV programmes. Editor-in-Chief: Jeta Xharra, BIRN Kosovo Country Director Copyright 2012, Balkan Investigative Reporting Network - BIRN BIRN reserves all rights to this report and no part of this publication is subject to reproduction or retransmission in any mechanical or electronic form, including photocopying or storing in retrieval system of materials without the publisher's prior authorisation in writing. This publication can be reproduced or transmitted only for non-commercial purposes. Whosoever intends to use excerpts or documents from this publication is obliged to clearly attribute the source wherever and whenever the excerpts or materials are reproduced. Should you have any comments, criticism or suggestions, you are kindly requested to contact the publisher through any of the following means: Publisher: Zhvillimi i Mediave: Translation: NSHP Transcript Design & Print: One Production Balkan Investigative Reporting Network BIRN (Kosovo) Mensa e Studentëve, Floor I Prishtina, Kosovo Tel. & Fax: kosova@birn.eu.com Web:

3 This publication has been produced with the assistance of the European Union. The contents of this publication are responsibility of BIRN and can in no way be considered to re lect the views of the European Union.

4 TABLE OF CONTENTS INTRODUCTION METHODOLOGY TRANSPARENCY 1. Failure to announce trials in the bulletin board 2. Holding trials in Judges offices 3. Transparency (lack of spokespersons) SUBSTANTIAL FINDINGS 1. Court summons 2. Functioning of Model Courts 3. Recent elections report in Kosovo 5. Appointment process of Judges and Prosecutors 6. Investigation Certi cate 7. Statute of Limitations PROCEDURAL VIOLATIONS DURING JUDICIAL REVIEW 1. Procedural violations and violations of the Criminal Code IV. Findings from trials 1. Hearings scheduled without coordination between judges and prosecutors 2. Late commencement of hearings 3. Unpreparedness of prosecutors in hearings 4. Passiveness of trial panel members (lay-judges) in hearings 5. Witness testimonies in trials 6. Interpretation during hearings HYRJE... 5 ME TODOLOGJIA... 7 TRANSPARENCA: Moslajmerimi i gjykimeve ne tabelen e shpalljeve... 9 Mbajtja e gjykimeve ne zyra te gjykatesve Gjyqesia e Izolimit (mungesa e zedhenseve) TE GJE TURAT PERMBA JTESORE: Problemi me ftesat gjyqesore Funksionaliteti i gjykatave Model Raporti i Zgjedhjeve te fundit te mbajtura ne Kosove Procesi emerimit te gjykatesve dhe prokuroreve Certi kata hetimore Parashkrimi I I I. S H K E L J E T P R O C E D U R A L E G J AT E S H QY R T I M I T G J YQ E S O R: Shkeljet procedurale dhe te Kodit Penal IV. Te gjeturat gjate gjykimeve Caktimi i pa-koordinuar i seancave gjyqesore mes gjyk atesve e prokuroreve Vonesa e llimit te gjykimeve Mospergatitja e prokuroreve ne gjykim Pasiviteti i anetareve te trupit gjykues (porote) gjate gjykimit Deshmia e deshmitareve gjate gjykimit Perkthimi gjate mbajtjes se gjykimeve Procesverbalet e gjykimeve Trial minutes TE GJE TURAT TEKNIKE Inefficiency of police in administering arrest warrants 1. Mose kasiteti i policise per urdherarrest Problems related with the transport of detainees to trials 2. Problemet me transportin e te paraburgosurve per gjykim Lack of use of electronic equipment in courts 3. Mos perdorimi i pajisjeve elektronike neper gjykata Use of cellular phones in court hearings 4. Perdorimi i telefonave celular gjate mbajtjes se gjykimeve Mosmbajtja e uniformes nga ana e gjykatesve, prokuroreve dhe avokateve gjate gjykimeve Failure to wear uniforms by judges, prosecutors and attorneys TJERA: MISCELLANEOUS Tranzicioni ne Gjykata Court transition Pirja e duhanit ne gjykatat tona vazhdon te jete shqetesuese Smoking in courts continues to remain a concern Urdherat Ndeshkimore Punitive orders REKOMANDIME T: RECOMMENDATIONS

5 INTRODUCTION For a third consecutive year, the Balkan Investigative Reporting Network has monitored court processes in Supreme, District, and Municipal Courts. Despite numerous attempts to improve the j u s t i c e s y s t e m i n K o s o v o, o n e - y e a r monitoring has identi ied legal procedure, technical and ethical shortcomings and violations associated with this process. Lack of transparency in the judiciary remains a feature associated with the system. Lack of trial announcements on the bulletin board, and enclosed court sessions held in of ices of judges remain as sources of serious concern characterising this year. Nearly half of the monitored sessions did not get announced in the bulletin board and, consequently, the public opinion and all other interested parties had no opportunity to attend the public hearings. Such a lack of transparency further enhanced the public perception that the judiciary is intentionally creating a confusion and vagueness in order to mask irregularities and misuses. This perception is blemishing all other positive efforts and developments in t h e j u d i c i a r y. A n n o u n c e m e n t o f t r i a l timetables on the bulletin boards requires little effort but would prove to be pivotal w h e n i t c o m e s t o d e m o n s t ra t i n g t h e commitment of the judiciary to remain open to the public. In addition, BIRN monitoring has identi ied procedural violations and infringements of the rights of parties involved in the judicial p ro c e d u re. A m o n g t h e s e p ro c e d u ra l violations, BIRN monitors have identi ied the commencement of hearing sessions without the full composition of trial panels, failures to read rights of witnesses and other parties in t h e p ro c e d u re, a n d o t h e r p ro c e d u ra l violations. This report also addresses other substantial topics on issues of concern for the Kosovo judiciary system. Similar to the observations made in relation to the judiciary last year, we f o u n d t h a t t h i s y e a r h a s a l s o b e e n characterised with dif iculties in delivering court summons, which have caused delays in trials. Investigation certi icates issued by the courts are not uni ied and vary among courts. During the reporting period, Kosovo Judicial Council, KJC, had not issued any regulation to ensure uniform certi icates and relevant fees. In addition, there is no adequate coordination between courts when it comes to issuing such certi icates. BIRN monitoring in trials on election abuse has identi ied additional issues which lead to delays in trials on election matters, and create a public perception that courts are rendering soft punishments compared to the trend of such offences. The report also addresses the inheritance structure in Kosovo, and BIRN monitors have identi ied problems and irresponsibility by competent municipal authorities on the issuing of death acts and of icial noti ication of the court on such matters. 05

6 Another major source of concern associated with the judiciary nowadays is the statute of limitations and prescription of cases. A l t h o u g h t h e r e i s a l a r g e n u m b e r o f p r e s c r i b e d c a s e s a n d c a s e s c l o s e t o prescription, including cases prescribed because of judge omissions, to date no judge has been held accountable for this. Execution of cases has also been addressed in the report, and this remains a major concern. The technical indings from this monitoring remain in the same level with slight progress achieved annually. When setting court hearings, judges and prosecutors are often uncoordinated and consequently many hearings are not held because sessions are d o u b l e - b o o k e d. I n a d d i t i o n, l a c k o f punctuality associated with late starts of h e a r i n g s h a d t h e a d d i t i o n a l e ff e c t o f postponing other hearings and contributing to the backlog. O t h e r t e c h n i c a l i n d i n g s w h i c h, unfortunately, are being considered as soft, and consequently tolerable violations because of the overload and improper conditions, include the use of mobile phones during trials, failure to wear uniforms, problems with interpretation during trials, issues in keeping accurate minutes, etc. Although technical, they all contribute to the course of hearing sessions. Sentencing by judges in most cases remains under the minimum envisaged by the law, con irming a lack of a sentencing policy t h ro u ghout t h e sys tem, which wo u l d correspond to the real situation on the ground. Work space in courts has also been addressed in the report, providing a comparison between model and non-model courts, presenting the advantages and disadvantages o f t h e m o d e l c o u r t s u p o n t h e i r transformation, after such courts started operating with the new system. The report also addresses other topics regarding Kosovo's judiciary, providing summarised information on the main issues in courts and the justice system in Kosovo. 06

7 METHODOLOGY A s o f , T h e B a l kan I nve s t i gative Reporting Network BIRN initiated the public services monitoring project in three sectors: Judiciary, Education and Health. Court Monitoring initially covered seven Kosovo municipalities, including four district courts and six municipal courts, and was subsequently expanded in 2009 to thirteen municipalities, monitoring eighteen regular courts in Kosovo: District Courts in Prishtina, 1 Pe j a, P r i z re n, G j i l a n, a n d M i t rov i c a ; Municipal Courts in Prishtina, Peja, Prizren, Gjilan, Ferizaj, Gjakova, Deçan, Vushtrri, Podujevo, Lipjan, Klina and Istog, and the Commercial Court in Prishtina. Considering the monitoring outcome into consideration, particularly in the judicial system, in 2010/11, BIRN has expanded the monitoring project to twenty-six municipalities, covering all municipal and districts courts in Kosovo. BIRN's Court Monitoring Report was drafted after a continuous monitoring of such regular c o u r t s. B I R N m o n i t o r i n g i n c l u d e s quantitative measures, with the use of q u e s t i o n n a i r e s d u r i n g t h e d i r e c t observations of monitored court sessions. 513 court sessions were monitored in 2008 (March 2008 March 2009), and 1, 248 (June 2009 March 2010) in A total of 2, 147 trials were monitored in 2010 (April 2010 February ), and in the period March December, BIRN has monitored a total of 2, 525 court sessions, of which 1,920 trials were held, and 605 were not held. A total of 1, 920 questionnaires completed from trials include questions on the progress of court processes, for which BIRN has issued recommendations in the previous year report. Contrary to last year, this year's report also addresses substantial issues associated with the Kosovo judiciary on daily basis alongside to procedural violations and technical indings. Results of such questionnaires are part of this report, presented as quantitative data. 1. Due to the political situation in Mitrovicë, where the courts in this municipality are located in the northern part of the town, BIRN monitors' team has not monitored the northern part, but rather only hearings of these courts held in the facility of the Municipal Court in Vushtrri, due to its functioning in extraordinary conditions and the inability to use its own legitimate building in Mitrovicë. 07

8 The report only provides qualitative information if a similar issue occurred in all courts throughout the monitoring period. At least one concrete example was presented in all sections of the report. In order not to in late the report, in most cases, examples are given in footnotes. In addition to directly observing hearing sessions during the reporting period, BIRN m o n i tors, h ave a l s o h e l d c o n t i n u o u s interviews with Presidents of Courts, Judges, Chief Prosecutors, Prosecutors, Counsels, other parties in procedure, of icials of relevant justice institutions, and of icials of KJC, Kosovo Police, Kosovo Assembly Legislation and Judiciary Committee, Kosovo Chamber of Advocates, etc. In addition to monitoring trials and comple t i n g q u e s t i o n n a i r e s, B I R N h a s a l s o addressed topics on justice in its programme J u s t i c e i n Ko s ovo. T h i s p ro g ra m m e addressed actual topics featured in most recent developments of the Kosovo judiciary. Other TV reports were produced on positive and negative practices and occurrences observed during the monitoring. Only on some occasions these stories and reports had an immediate effect, after relevant institutions have undertaken concrete steps to overcome such situations, also suspending people abusing their positions. 08

9 TRANSPARENCY 1. Failure to announce trials on the bulletin board The principle of publication when exercising public functions is guaranteed in the Constitution of the Republic of Kosovo, Criminal Procedure Code of Kosovo, and the 2 Law on Contested Procedure. This set of legislation provides guarantees that trials shall be open and transparent, that court hearings are public and that every citizen has the right to be informed on the public hearings. Failure to announce trials on the announcement board, which is mandatory for each court, remains an issue, making the courts closed to the public. However, compared to the previous year, a visible improvement has been noted. Out of 2, 147 monitored sessions last year, 49.9% were published on the bulletin boards. It is evident from the table below that of 1,920 monitored sessions which were held in, % were published on the bulletin boards. Despite this progress, court monitoring shows that courts are yet to ful il their obligations to publish all information which facilitates access to justice for citizens. Of all monitored courts, Municipal Courts in Prishtina, Prizren, Prizren, Peja, Gjilan, and Vushtrri have the highest numbers of failures to publish hearing sessions in the announcement board. Number of monitored hearings not published in the announcement board 2.. The Criminal Procedure Code of Kosovo, Article 328, paragraph 1, The main trial shall be held in open court; Law on Contested Procedure, Article 444, paragraph 1, The main hearing session is held publicly. 09

10 While the Municipal Court in Prishtina has never published its court hearings in the a n n o u n c e m e n t b o a rd l a s t ye a r, s u c h publication has started as of May, after it was inaugurated as a model court. According to data provided by the one-year monitoring, this court has only announced 12% of court hearings and 88% were not a n n o u n c e d. S u c h s t a t i s t i c s ke e p t h e Municipal Court of Kosovo as the least transparent court in Kosovo. However, the Municipal Court in Prishtina is not the only court to have failed in transparency. BIRN monitoring has also identi ied other courts which never publish their trials in the announcement board. None of 33 monitored cases in the Municipal Court in Podujevo was published in the announcement board. A similar situation is with the Municipal Court in Vushtrri, where 78% (94) of monitored hearings were not announced. To provide a clearer overview of the situation in relation to the announcement of the trials' schedule, the table below shows that compliance with transparency varies among different municipalities. Number of monitored hearings which were (not) announced in the announcement board Presidents of courts bear the main responsibility for such a situation, as they continue to fail in undertaking the required measures to ensure that each trial is published in the announcement board, whereby citizens and other interested parties would be kept informed on public hearings. 10

11 However, since January this year, LCD monitors have been installed in almost all courts, with the aim of announcing trials. N e a r l y a l l c o u r t s p r o v i d e m o n t h l y announcements of their hearings, which will be addressed in BIRN's subsequent report on the reporting period of Holding trials in Judges' of ices Holding trials in of ices of Judges remains an issue in our courts, which directly affects courts' transparency. Holding them in of ices rather than in courtrooms makes public participation largely impossible, violating the principle of openness - a key principle for 3 holding court hearings. According to the table presented below, 55.63% (1, 068) hearings were held in of ices of judges. This is a rather concerning issue which hasn't changed signi icantly since last year, when of 2, 147 monitored hearings, 57% were held in judges' of ices. Venue where the hearing was held? Prishtina is notorious for trials being held in court of ices. The Municipal Court in Prishtina has held 95% of trials in of ices of judges. This facility has two courtrooms, and there were cases where they were vacant while hearings were being held in judges' of ices. BIRN monitoring data indicate that the Municipal Court in Vushtrri is not in a better position either. The Municipal Court in Vushtrri has held 99% of monitored trials in the of ices of judges. Of 120 hearings held and m o n i t o r e d, o n ly o n e wa s h e l d i n t h e courtroom. 3.. Criminal Procedure Court of Kosovo, Article 328, Paragraph 1, The main trial shall be held in open court; Law on Contested Procedure, Article 444, paragraph 1, The main hearing session is held publicly. 11

12 This is the only courtroom in the building which also serves for the needs of the District Court in Mitrovica. The occurrence of hearings in of ices despite the fact that courtrooms were vacant was also largely present in Municipal Courts of Gjakova, Peja, Lipjan, Prizren and Suhareka, which is a recurring issue from the previous year. Similar to the previous year, the Municipal Court in Ferizaj is in a better situation when it comes to the use of courtrooms. Of 265 hearings monitored in this court, 249 (94%) were held in courtroom, and 16 hearings (6%) in judges' of ices. Similarly, Municipal Courts in Skenderaj, Drenas and Viti, in most cases hold their trials in the courtroom, respecting the principle of openness to the public in court procedure. In addition to the narrow space and dif icult conditions for an adequate trial, when hearings are held in of ices, the court procedure is frequently hindered by third parties who continuously interrupt the process by entering the of ice to seek information. On June 25, 2012 BIRN organized a roundtable with representatives of the Kosovo judiciary, prosecution and police. This roundtable was used to discuss indings with judges and prosecutors, who expressed their opinions on the conduct of trials in of ices and on the prevalent working conditions in courtrooms and courts in general. While some court presidents, including those of municipal courts in Lipjan and Theranda, stated that trials are held in of ices because of the lack of adequate technical conditions (monitors, air conditioning, computers, etc.) in the existing courtrooms, prosecutors claimed that courtrooms had many structural de iciencies, including the seating order of the parties in trial. Ali Selimaj, Municipal Prosecutor from Gjakova, stated that the existing courtrooms lack computers, air-conditioning and heating, adding that the seating arrangement in model courtrooms is inadequate, as they envisage the seating of public audiences immediately 4 behind the parties in procedure. Holding hearings in of ices of judges is an occurrence associated with the judiciary for many years now. In such circumstances, the public cannot participate in the hearing, although such participation is guaranteed with international conventions and the Kosovo legislation. Statistics indicate that similar occurrences continue year after year in similar numbers, implying that Presidents of Courts have agreed to this violation and situation, and are not willing to undertake actions to prevent it from happening. 4. Roundtable discussion on the indings of the monitoring activity March-December. BIRN. 25 June 2012, Prishtina. 12

13 3. Transparency (lack of spokespersons) Judicial and other institutions remain nontransparent. Despite an increase in the number of judges and prosecutors this year, the number of administrative staff, which could play a role in enhancing transparency, remained unchanged. There are only two PR Of icers in all Kosovo courts, who also serve as spokespersons, and t h e r e i s o n l y o n e s u c h o f i c e r i n t h e Prosecutors' Of ices, which has an impact in the lack of information on the access to justice for the Kosovo citizens. During the phase of monitoring activities and producing TV programmes Life in Kosovo and Justice in Kosovo, BIRN has found that judges and prosecutors are willing to give statements. Additionally, there are also reports that some judges and prosecutors object to this, despite the fact that statements c o u l d b e g i v e n w i t h o u t h a r m i n g t h e investigative or court process in any case. The Model Court project brought into surface the existence of an information desk in courts, where citizens or interested parties can obtain basic information on the schedule of trials, and the of ice where they can acquire further detailed information. However, these information desks do not substantially enhance the courts' transparency as the cases and other court materials are usually stored in the of ices of judges. Courts of all instances, from the highest, the Supreme Court, to the district, municipal and the lowest, the minor offence courts, have no designated of icial to provide information on court processes. Since 2007, Information Of ice of the Kosovo Judicial Council is the only address available for obtaining information on the entire judicial system. Although many courts now operate under the Model Courts system, the main goal of which is to ensure transparency, it is unfortunate that Kosovo citizens continue to face dif iculties in acquiring information on relevant issues in the judiciary. Reporters have many dif iculties in securing information on court cases or obtaining other pieces of information. K r e s h n i k G a s h i, r e p o r t e r o f t h e T V programme Justice in Kosovo says that in some cases judges are reluctant to give interviews, particularly to TV reporters. This creates dif iculties for journalists and results with a lower level of public information. Muhamet Hajrullahu, journalist from BIRN Kosovo, stated that the readiness of the judiciary and prosecutors to give press statements as well as press releases is a major dif iculty in acquiring relevant information for the public. As a result, reporters are frequently forced to obtain information from second or third party sources. This could all lead to inaccuracies in information as they are not provided by relevant formal authorities, but instead they are acquired from second and third parties. 13

14 The applicable legislation envisages no particular position for a spokesperson in courts or prosecutors' of ices; however, it obliges the presidents of courts or the chief prosecutors to provide information for interested parties, ensuring that this high demand for public information is ful illed. The practice in recent years has shown that this was not a functional solution, as BIRN monitors identi ied several complaints by reports, civil society, and citizens, as well as by the presidents of courts and the chief prosecutors. The former mainly complain on great dif iculties in obtaining information, and the latter raise their concerns that they are not trained for the provision of information and that they have many other duties, which makes it dif icult for them to have quality communication with the public. The Kosovo Judicial Council has made some efforts to improve this situation, publishing annual business reports, which include an assessment of courts' performances. These reports can be found in the of icial webpage of 5 the KJC. Nevertheless, there is a serious need t o f u r t h e r e n r i c h a n d s p e c i f y s u c h information. Speci ically, this institution does not provide statistical information on types of criminal offences tried in our courts, or on the sentences issued for types of offences in certain periods. This represents a dif iculty for interested parties in need of such data, such as students, professors, and researches. In the absence of such data, it is impossible for research institutions to present trends of criminal offence occurrences and sentencing or the development of punitive policies. On the other hand, The Kosovo Prosecution, which has only one spokesperson in all instances, has marked a progress in terms of publications of its performance, publishing quarterly or biannual reports. Their webpage is updated and it includes business reports and plans for upcoming years, including for H o w e v e r, t h e r e l u c t a n c e o f prosecutors to give public statements on issues within their scope of responsibility remains a source of concern. EULEX, the EU mission for rule of law, is also reserved when it comes to transparency. Apart from their reluctance in giving statements on cases under progress, EULEX is has failed to show transparency when it comes to their performance data and reports; however, they are transparent in announcing court hearings. This lack of transparency and reticence contributes further to the already non-transparent situation reigning over Kosovo's judiciary. On the other hand, representatives of the judiciary and prosecutors' of ices presented different opinions regarding transparency, during the roundtable organized by BIRN for the purpose of discussing the indings of the judiciary monitoring report, held on June 25, Kosovo Judicial Council. Web. < State Prosecutor. Web. < 14

15 While Fillim Skoro, a judge at the District Court in Prizren, stated that judges should be more cautious in their statements, and that he has some bad experiences with the various interpretations that attorneys give to media, t h e r e w e r e a l s o j u d g e s w h o t h o u g h t differently. According to the President of the Municipal Court in Ferizaj, Bashkim Hyseni, the problem o f K o s o v o ' s j u d i c i a r y i s t h e l a c k o f spokespersons, which results with the system providing very limited information to the public. He added that the example of Kosovo Police should be followed as an a d e q u a t e m o d e l o n h o w t o p r o v i d e information and how to inform the public. His opinion was shared by the President of the District Court in Mitrovica, according to whom t h e a l l c o u r t s h o u l d h ave t h e i r spokespersons. On the other hand, there were also proposals from judges to journalists for the latter to take part in public hearings and to report also on positive developments and events in courts, as the public has gained an impression that there are no successes or positive developments in courts. The President of the Municipal Court in Malisheva addressed some criticism to the K J C, r e l a t e d t o t h e l a c k o f a d e q u a t e information in KJC's internet page. Lulëzim Paqarrizi asked KJC to place all necessary information in its web-page, as it would address the acute lack of data and could 7 facilitate interaction among judges. In conclusion, there is an obligation of Kosovo's courts and prosecutors' of ices towards the public. Respecting the nature of their work, and without any risks to the course of investigations and trials, in accordance with the applicable law, the public rightfully expects a higher level of transparency by the courts and prosecutors' of ices. One of the most realistic possibilities to improve this situation is to provide public r e l a t i o n s t r a i n i n g s f o r j u d g e s a n d prosecutors, in order to enable a professional c o m m u n i c a t i o n b e t w e e n j u d g e s a n d prosecutors and the public and the media, within the con ines of the relevant legal provisions. 7. Roundtable discussion on the indings of the monitoring activity March-December. BIRN. 25 June 2012, Prishtina. 15

16 SUBSTANTIAL FINDINGS 1. Court summons BIRN monitoring of the judicial system has also addressed and identi ied dif iculties of municipal courts with the delivery of court summons to parties. Addressing this issue adds clarity to the legal regulation of court-party communication, a n d d e i n e s t h e i n s t i t u t i o n s l e g a l l y responsible for delivering such summons, and the communication between such intuitions. The delivery of summons is regulated with the Provisional Criminal Procedure Code of Kosovo (CPCK), the Law on Contested Procedure (LCP), which clearly de ine the person receiving the invitation, and the standard procedure when such people are 8 not present. Courts and Prosecutions are obliged to timely deliver summons, which include accurate addresses and information. The Kosovo Police is obliged to execute orders and instructions legally issued by the public prosecutor and/or the competent 9 judge. The Municipal Assembly, have an obligation in compliance with the Law on Local Self- Government to accurately name and rename streets, settlements and other public 10 facilities. The Kosovo Postal Service has an obligation to deliver court summons in accurate 11 addresses. This report identi ies issues which affect the failure to duly deliver court and prosecution summons, which include: - Lack of coordination between the courts, prosecutors' of ices, Municipal Assembly, Postal Service and Police; - Failure to ensure accurate records (name, address, personal number, etc.) - Failure to oversee the summons' delivery process through return information by the Post or court currier services; - Failure of Municipal Assemblies to complete and unify the street and settlement naming process; T h i s r e p o r t i s b a s e d o n t h e r e g u l a r monitoring of all Kosovo districts and 12 municipalities. In addition, 103 interviews were held with relevant people from courts, municipalities, Post and Telecom of Kosovo, Police, and concrete cases of parties. Based on this study, the communication between the relevant institutions in charge of summons' delivery is minimal Criminal Procedure Code of Kosovo, Articles ; Law on Contested Procedure, Articles , Law on the Kosovo Police, Article 6, Paragraph 1. Law on Local Self-Government, Article 40, Paragraph 9. Criminal Procedure Court of Kosovo, Article 124, Paragraph 1; Law on Contested Procedure, Article 103, Paragraph 1. District Courts in Prishtina, Peja, Prizren, Gjilan and Mitrovica; In Municipal Courts in Prishtina, Peja, Prizren, Gjakova, Ferizaj, Gjilan, Deçan, Vushtrri, Podujeva, Lipjan, Shtërpce, Rahovec, Malisheva, Therranda, Drenas, Kamenica, Skenderaj, Viti, Kaçanik and Istog. 16

17 Judges complain against couriers, and couriers complain about dif icult conditions they have to face during their work. Couriers also complain about inadequate completion of summons by judges, which is also a complaint expressed by PTK couriers. In addition, the police of icers complain on the courts' performance in issuing court orders for persons to be brought to court, due to lack of information on the addresses of parties. Furthermore, courts complain against the police that they use the argument of inaccurate addresses as an excuse for not 13 bringing certain persons to court. On the other hand, in most municipalities, PTK and courts have complained that they never formally received an of icial list of street names and numbers, which would be of great assistance when it comes to accurate 14 identi ication of addresses. Given the observations made thus far, however, there is no indication that courts or prosecutions have thought of using the civil registry, which could facilitate them in identifying relevant people for court processes. A normally functioning state should have a citizens' identi ication system, using the name, last name, personal ID number, address, etc. Even if citizens change their addresses, the state should be capable of track down the citizen within 24 hours, by u s i n g o t h e r c i v i l r e g i s t r y m e t h o d s, considering that failure to report the change of residence is considered a legal violation. Although people may change their address, the state should be capable of using other methods, such as the civil registration, within 24 hours, as the failure to report a change of residence is considered as a violation. This issue often reaches a level of banality, when representatives of the court and of the municipality blame each other. There are representatives of both institutions who consider that the municipality is obliged to automatically submit information on names of streets, and others who believe that this should be done only if the court goes to the municipality to formally request this information. Such an approach, based on stubbornness and bureaucratic arrogance, has a direct impact on further delays in improving the situation with court and prosecution summons. It is clear from interviews with relevant 1 5 of icials of such institutions, that the cooperation between these institutions is not in the satisfactory level. There is a better cooperation between the Courts and Police Stations, and insuf icient cooperation b e t w e e n t h e Po s t a l S e r v i c e s a n d t h e municipalities. There are cases when the Postal Services and the Municipality are not informed on the issues courts face in delivering summons, due to the working negligence of the couriers of the Postal Service and inaccurate addresses For more information please read the BIRN report and its section on issues with court summons. Ibid All district and municipal instance courts, PTK branches, police regions in relevant municipalities and municipalities. 17

18 According to the PTK Director in Peja, Besa Gaxherri, the Postal Service was never informed on the problem the courts have in delivering summons. If the court faces dif iculties, it may sue the Postal Service - said Director Gaxherri. 1 6 According to the Law PTK is obliged to provide services for courts, including delivering summons. In alone, KJC has 17 spent 432, Euro in services provided by PTK. However, despite these expenditures, the delivery of summons by the Postal Service is amongst the most emphasised issues in most 18 municipalities. Furthermore, KJC has no mechanism of controlling PTK services for courts. The President of Municipal Court in Theranda, Nuredin Abazi, inds that the problem with summons is caused by couriers who fail to hand them over to the persons summoned by t h e c o u r t, a n d w h o fa i l t o i n c l u d e respective indings in the hand-over sheet. This, in turn, causes postponement of numerous hearings. Mr. Abazi also inds that there are many cases when the police failed to bring adequate persons to the courtroom. Although courts may have issued an order for an individual to be brought to the court, in order for them to attend respective judicial proceedings, the police Criminal Procedure Court of Kosovo, Articles ; Law on Contested Procedure, Articles , Postal costs paid by KJI for : January: EUR 46,390.07; February: EUR 56,532.30; March: EUR 46,364.13; April: EUR 48,579.50; May: EUR 49,404.46; June: EUR 51,370.80; July: EUR 37,924.55; August: EUR 40,573.05; September: EUR 54, Of 18 courts monitored by BIRN, Municipal Courts in Prishtina, Peja, Ferizaj, Rahovec, Skenderaj, Malisheva, Podujeva, Drenas, Viti, Shtërpce, Theranda and Lipjan are dissatis ied with the performance of PTK in delivering summons. Courts with no issues with PTK are the Courts in Prizren, Kamenica, Vushtrri and Deçan. Whereas PTK refused to provide information in Gjilan and Gjakova. 18

19 has failed to comply with such orders. This a l s o c a u s e s p o s t p o n e m e n t o f c a s e 19 deliberation, added Nuredin Abazi. On the other hand, one of the Kosovo Police spokespersons agreed with the report indings on summon delivery related problems, and claimed that this matter is regulated by law. According to him, in numerous occasions the police found two or more persons with the same name and surname, while problems with addresses and residences further deteriorate the situation. He added that the related institutions should convene and to ind a solution for the courtsummon issue, rather than expecting from BIRN to solve their problems. Old cases remain an issue for all courts. The main problem in submitting summons for such cases is that parties have changed their places of residence, but failed to inform the court, as it is envisaged in the law. Parties are largely unaware of this obligation. As a result, court processes are delayed and parties are never informed with advance notice. On the other hand, the only justi ication for the incomplete addresses in municipalities is the fact that the Law on Legalisations is not yet adopted by the Kosovo Assembly. The lack of this law is making it hard for municipalities to approve regulations for legalisation, maintenance and names of objectives and settlements. 2. The Functioning of Model Courts The majority of court buildings in Kosovo are old, built in times of former Yugoslavia, or earlier. Many courts work in joint buildings with Prosecutors Of ices and lower instance courts, such as in Gjilan, Peja, Istog, Klina, Gjakova, Prishtina, Ferizaj, Vushtrri, and Deçan. Not all courts meet the technical conditions required for normal functioning as courtsand the following are the identi ied issues in court buildings: lack of courtrooms, lack of of ice space for Judges and Court staff, lack of separate rooms for protected witnesses, lack of rooms for trial panel deliberation and voting, lack of public space, lack of space for prisoners, lack of space for detainees waiting to appear before the pre-trial judge, lack of car parking space, lack of access for people with disabilities in upper loors of courts, because, with the exception of Prizren, all courtrooms are located in second loors, lack of emergency entries and exits, lack of separate entries for defendants or prisoners, lack of entries for witnesses (particularly in cases when they are protected), 19. Roundtable discussion on the indings of the monitoring activity March-December. BIRN. 25 June 2012, Prishtina. 19

20 lack of space for Counsels and Prosecutors, to be used for leaving items not required during the trial, lack of case archiving space, lack of space in case management of ices, l a c k o f m o n i t o r s f o r a t t o r n e y s a n d p r o s e c u t o r s, t o b e u s e d d u r i n g t h e compilation of trial minutes, lack of space in execution of ices, After the war, nearly all court facilities have gone through interior rehabilitation, without c h a n g i n g t h e p r e v i o u s s t r u c t u r e o f courtrooms or of ices of judges and other court staff. 20 However, in July 2007, USAID has initiated 21 the Justice Support Program, committing 19.5 million USD. This program envisaged the establishment of Model Courts, implemented as of December 2007 in six District and M u n i c i p a l C o u r t s, a d d i n g fo u r o t h e r municipal courts in April The irst Model Court to be inaugurated was the Municipal Court in Ferizaj in September followed by other Model Court inaugurations. However, despite projecting a higher functioning of courts in the model system, permanent issues of concern were identi ied by BIRN monitoring. Model Courts continue to have a lack of space, as the existing space was only redesigned. These shortcomings include: lack of courtrooms, lack of of ices for judges and other court staff, lack of rooms for protected witnesses, 23 lack of rooms for detention, lack of space for counsels and prosecutors, etc: Model Courts have envisaged that CMCOs (Case Management Central Of ices) shall have c o m p e t e n c i e s fo r c a s e m a n a g e m e n t, eliminating the case archives in judges' of ices, but this does not happen in reality as 24 in the majority of Model Courts cases are still handled in Judges' of ices, and CMCOs are tasked with settled cases and new cases arriving in the court. Although many court staff trainings have been organised on utilising the new case management system, which includes the operation of CMCOs, and organisation of work in court, BIRN monitoring found that the actual application of this system occurs in rare cases. As a consequence, cases remain visible only in archives of of ices of judges, and the majority of judges continue to hold hearings in their of ices US Agency for International Development, USAID. < "Model Courts." USAID. Web. < Enhancing Ef iciency in Courts." TV programme of 'Life in Kosovo'. BIRN, 24 September Web. < ikasitetit-neper-gjykata-467 >. District and Municipal Court in Peja. Municipal Court in Ferizaj, District and Municipal Court in Pejë, Municipal Court in Gjakovë, Municipal Court in Prishtina etc. 20

21 Model Courts are perceived as being more open to parties, as there is an information desk in each model court, where citizens can obtain basic information on the of ices can they visit to get an answer. I n m o s t c a s e s, p a r t i e s d o n o t g e t t h e requested information, as judges are very busy with other trials or are not willing to provide such information to parties, although case iles are usually in of ices of judges. Implementation of IT systems with higher seriousness and commitment would avoid this obstacle. Model Courts staff and judges themselves should apply the new forms of case management as envisaged by the model system, as this would have an impact on the ef iciency of courts and would alleviate the work schedule of judges and court staff. 21

22 3. Recent elections report in Kosovo U n t i l , e l e c t i o n s i n Ko s ovo we re organised by the Organisation for Security and Cooperation in Europe (OSCE). They were assessed as well organised elections, in compliance with international standards. Municipal elections in 2009, the irst elections organised independently by local authorities, particularly national elections in 2010, have shown a signi icant difference in quality from the previously organised elections under the auspices of the OSCE. The level of organisation was of particular concern. Moreover, they were associated with numerous manipulations and irregularities. The Complaints and Appeals Panel, (ECAP) received 454 complaints, the majority of which related to the rigging of votes. Municipal Prosecutions in the Republic of Kosovo thus far indicted 1,343 people for 'Election fraud' as per Article 180 of the Criminal Code of Kosovo (CCK) and other offences envisaged in this Chapter. These cases, with the order of the State Prosecutor, were addressed with a priority. In, BIRN has monitored over 80 sessions in municipal courts on election Sentences: abuses. The Prosecution has prosecuted in compliance with Article 180 of the CCK - Election Fraud and Article 178 'Abusing the right to vote'. CCK envisages various types of punishments for such offences, which vary on the way the offence was committed. For those who infringe the right to vote this code envisages a ine and imprisonment from 6 months to 3 years. For people who are considered to have committed voting fraud, sanctions envisaged are effective imprisonment from 6 months to 25 5 years. Of all issued sentences thus far only 18 people have been sentenced to prison (one person with 40 days, ten with three months, one person with four months, four with six months, and only two persons with one year of imprisonment). Considering these sentences, one may get the impression that Kosovo Courts were overly tolerant and merciful in sentencing, as the majority were sentenced with a ine. Monetary ines vary in value, ranging from E u ro t o t h e h i g h e s t 1, E u ro. Suspended sentences are envisaged in such a way that he court's decision will not be executed unless 25. Criminal Code of Kosovo, Articles

23 the sentenced person creates another criminal offence until a de ined date. In such cases the longest sentence issued is two years. In relation to the issuance of election-related sentences, the participating judges and prosecutors presented various opinions that w e re f u r t h e r d i s c u s s e d a t t h e B I R N - organized roundtable on June 25, While prosecutors insisted that the sentences issued were too soft, judges claimed that they are compliant with the law. According to the Chief Municipal Prosecutor in Prishtina, Haki Gecaj, courts' sentencing policies were very soft. On all election-related cases that fell under the competencies of municipal prosecutors in Prishtina, appeals were iled to the secondinstance courts and the good news is that such appeals were upheld and, in almost all of them, the sentences issued by the irst-level court were increased. The same opinion was shared by the Chief District Prosecutor in Mitrovica, Shyqri Syla, according to which the sentencing policy followed by courts in all election fraud cases was too soft. According to him, all electionrelated sanctions were appealed at the second instance court, and almost 70 or 80 percent of all sentences issued by courts yielded a positive outcome. i s i n t h e c o m p e tence o f t h e c o u r t s to objectively assess each case individually, and ind their decisions on the legal provisions. Moreover, the President of the Municipal Court in Gjilan, Ramiz Azizi, stated that all judgments issued by his court included court sentences. According to him, this court's panel has met and reached a principle stand 26 in relation to deliberations of this nature. The President of the Municipal Court in Ferizaj, Bashkim Hyseni, said that sentencing policies should be humane, and that effective imprisonment should be applied only for severe criminal offences. Due to numerous manipulations, the CEC Secretariat was forced to reorganise voting in 185 polling stations on January 9,, and in 126 polling stations on January 23,. A total of 2, 887 additional members of the Polling Station Committees (PSCs) were engaged in this revote process, costing Kosovo with around 674, 000 Euro. Many complaints were upheld by ECAP and referred to the State Prosecutor to initiate investigations on election fraud. Indictments and criminal charges were drafted and iled as a result of these complaints in the majority of Kosovo's municipalities. As a result of such complaints, ECAP and the Supreme Court of Kosovo took decisions to repeat voting entirely in four municipalities of Kosovo. On the other side, judges were claiming that it 26. Roundtable discussion on the indings of the monitoring activity March-December. BIRN. 25 June 2012, Prishtina. 23

24 In its elections report, BIRN will also analyse the drafting of indictments and criminal charges on such cases in the prosecution, their submission in courts, the course of court hearings, procedural and technical issues in hearings, and will focus on types of sentences issued by the court for the perpetrators. Finally, BIRN will provide recommendations for the Kosovo Police, CEC, ECAP, and for court institutions related to the regularity of the elections process, identi ication of persons abusing with the voting rights of citizens, and sentences which may be issued for the perpetrators of such offences. 5. Appointment process of Judges and Prosecutors The Judicial Appointment and Reappointment Process, as one of the most important processes of judicial reforms, has marked a signi icant progress, but is not yet completed. According to the European Commission Progress Report, Kosovo's courts are 27 expected to have 399 Judges for all courts. According to OSCE, in April 2009, each of former 450 judges and prosecutors had to 28 reapply for his/her position. According to the data published by OSCE, more than half of judges and prosecutors have not passed the 29 ethics test. The obligation of judges and prosecutors to go through the testing process was evaluated differently by many interviewed parties. Kjartan Bjornson, former Chief of Operations in the European Commission Liaison Of ice, cited that Many candidates have failed to pass the ethics test, and I believe that we all agree that a judge should be capable of p rov i n g t h a t h e re c o g n i s e s t h e b a s i c principles of ethics. Unfortunately, this is not always the case. This process was not 30 pleasant, but it was important." A number of judges and prosecutors who failed the ethics test had many complaints on its organisation and structuring of questions. According to Abdurrahim Islami, Municipal Court Judge in Ferizaj, the time offered for 31 this test was too short, only 90 minutes. Despite article 150 of the Constitution of Kosovo, which stipulates that it is mandatory for all sitting judges and prosecutors to undergo the ethics test, to the Criminal Law Professor, Ismet Saliu, this test should not h a v e b e e n o r g a n i s e d f o r j u d g e s a n d prosecutors already in service. According to him the test was too derogatory and improperly organised, and the test of ethics s h o u l d h ave b e e n t a ke n o n ly b y n e w candidates Progress Report for Kosovo, page 11, European Commission. < en.pdf.> Independence of the Judiciary in Kosovo: Institutional and Functional Dimensions, page 15, < Ibid. BIRN interview with Kjartan Bjornson, former Chief of Operations, European Commission Liaison Of ice. 18 August. BIRN interview with Abdurrahim Islamin, Judge, Municipal Court in, Ferizaj, Kosovo. 22 October

25 Representatives of the Independent Judicial and Prosecutorial Commission (IJPC), now the Coordinator Judicial and Prosecutorial Evaluation and Veri ication Of ice, and a large number of new judges, believed that a test of ethics was also important for judges and prosecutors in service, in order to ensure that they do not create the impression that they 32 will keep such positions forever. The table above indicates that the process of illing vacancies for judges was completed in the supreme and district courts, and that it is currently ongoing in the municipal and the minor offence court. Despite the fact that the appointment process has been completed in the supreme and district level, not all positions envisaged and approved for the court have been illed. On the other hand, municipal courts continue to have a lack of judges, despite an extensive backlog. The municipal court in Gjilan is in the most dif icult position with 5 judges less; a similar situation is in Prishtina and Vushtrri. Special Chamber The Law on the Special Chamber of the Supreme Court which was effective as of January 2012 provides that 12 local and 8 international judges will serve. Currently, this Chamber has ten judges, despite a requirement of twelve judges. Similar to previous phases of judicial appointments, the failure to apply the court instance standard was concerning. The practice in Kosovo and in developed countries is that judges appointed in higher instance courts must have worked previously in lower instance courts. This practice was not applied this time because in judges with no experience have served in the Special Chamber of the Supreme Court. 32. Judicial Appointment and Reappointment Process. BIRN. September. 25

26 When publishing vacancies for the Special C h a m b e r a c c o r d i n g t o i t s r u l e s a n d procedures, KJC included the requirement of experience of ive to seven years in law, but excluded the requirement of previous experience as judge, and the standard of court instances. In effect, this modi ication allowed Sabri Halili, Hilmi Bajrami, Shkëlzen Syla, Sylejman Shumolli and Diellëza Hoxha to serve in the Special Chamber of the Supreme Court, irrespective of the fact that they have not previously worked as judges. The appointment of the aforementioned people to serve in the positions outlined previously was rationalised by KJC where it claimed that their experience as senior legal of icers and lawyers in various companies or as professional associates in district and municipal courts, and even as journalists would have been suf icient in equipping them with the skills needed for these positions. Not only have these judges assumed their responsibilities with no previous experience in other courts, but there are also cases when they try cases of the irst and second instance i n t h e S p e c i a l C h a m b e r, d e s p i t e t h e requirement that people with more extensive professional experience must be appointed in such positions. The President of the Special Chamber is aware of this fact and claimed that this occurred due to an insuf icient number of judges. Final enactment, as the last phase of the judicial appointments, was assessed to have been associated with interference in the nomination of three candidates for judges and prosecutors proposed by the IJPC/KJC. In fact, at time acting President of Kosovo did not nominate the three proposed by KJC/IJPC. At the time, the media reported of potential interferences in the list proposed by KJC. The TV programme Life in Kosovo also addressed this issue, considering it an intolerable interference of politics in the judiciary. Although no person has a ccepted t he responsibility for such interference, it is assumed that it was done by the Presidency, which removed some unfavoured judges and p r o s e c u t o r s f r o m t h e l i s t a t t h e l a s t 33 moment. This series of events undoubtedly proves the irregularities associated with the process during the enactment of the candidates. The incomplete appointment procedure continues to affect the performance of courts and prosecutors' of ices due to an insuf icient number of judges and prosecutors. The Municipal Prosecutor in Peja suffers the most due to the insuf icient number of prosecutors. This of ice operated with only four prosecutors, covering the region of Peja, 3 4 D e ç a n, I s t o g a n d K l i n a. D u e t o t h e insuf icient number of prosecutors, in some "In luences in the Judicial System. TV Programme 'Life in Kosovo'. 29 October Web. < Problems of Prosecutors and Judges TV Programme 'Justice in Kosovo'. 31 January. Web. < 26

27 cases the of ice allocates cases to prosecutors, which must be represented in the court on the 35 same day, without any prior preparation. This situation has re lected unpreparedness of prosecutors on the case at hand, and it often caused adjournment and postponement of hearings for another date, having a direct effect in the extensive case backlog and delays. The table above clearly shows that there s h o u l d b e 4 1 ex t ra p ro s e c u tors i n a l l instances, 19 alone for the municipal instance for offences punishable up to 5 years of imprisonment. O S C E h a s c o n c l u d e d t h a t t h e J u d i c i a l Appointment Process was in luenced by the President of Kosovo. According to them, it is not entirely clear how many candidates recommended by the IJPC were rejected by the KJC, and how many were sent back from the President later. What is clear is that in each phase the recommended candidates by 36 IJPC were not ultimately appointed. 6. Investigation Certi icate Investigation certi icate is a document which shows whether a criminal procedure is ongoing against a person in the territory of the Republic of Kosovo. In case a criminal procedure is initiated against a person in one of the courts of Kosovo, it will be indicated in the investigation certi icate issued by the relevant court. "In luences in the Judicial System. TV Programme 'Life in Kosovo'. 29 October Web. < Problems of Prosecutors and Judges TV Programme 'Justice in Kosovo'. 31 January. Web. < 27

28 However, there is a lack of coordination and communication between courts in Kosovo and therefore it is rather dif icult to obtain information for a particular person at any given moment in time. Courts complain on the lack of a quality and timely exchange of information amongst themselves. Given the lack of information on people with an ongoing criminal procedure against them, many people have been issued investigation certi icates despite the fact that they might be facing legal proceedings. This situation also comes as a result of weaknesses speci ied earlier in this report, on the i m p l e m e n t a t i o n o f i n f o r m a t i o n a n d communication systems in courts. Another major issue affecting the situation is the lack of a relevant legislation. There is no law or regulation which would oblige courts to inform each other on its investigative and litigating activities against citizens of the Republic of Kosovo. Courts have improvised such an exchange based on the current practice created during daily operations of courts. The lack of a law or an administrative instruction whereby KJC would oblige timely information of competent courts on persons subject to criminal procedure is a de iciency with a signi icant effect in Kosovo's judiciary. Persons responsible for issuing investigation certi icates are not legally obliged to inform other courts that a criminal procedure is ongoing against a person. Courts failing to inform other courts on criminal procedures against a person well in advance are not held criminally or administratively liable. BIRN's one-year monitoring has identi ied cases where people under investigation have been issued investigation certi icates which of icially stipulate that no criminal procedure is ongoing against them. It is considered that t h e m a i n re a s o n fo r t h i s i s i m p ro p e r coordination and lack of timely information o f c o u r t s o n p e r s o n s u n d e r c r i m i n a l procedure. A similar case occurred in the Municipal Court in Kamenica, where an indicted person, B. P, was issued with a certi icate of clearance of any criminal investigations although the person was indicted for a criminal offence p u n i s h a b l e w i t h u p t o 1 0 y e a r s o f imprisonment. The reason is said to have been the lack of coordination between the District Court in Gjilan and the Municipal Court in Kamenica, as the Kamenica court was not aware that the person requesting a certi icate is under a criminal procedure in the District Court in Gjilan. A similar situation occurred to several people from Vushtrri. A certi icate of clearance from any criminal investigations was issued although they were being tried in the District Court in Prishtina. According to Mustafa 3 7 Halili, working as referral clerk in the Municipal Court in Vushtrri, only the Municipal Court in Prishtina regularly informs other courts on persons under criminal procedure, whereas other courts do not share this information in a timely manner. He was noted to have said that a certi icate was issued to A.Xh. several times, 37. BIRN interview with the Criminal Clerk, Municipal Court in, Vushtrri. Kosovë, Vushtrri. 28

29 although he was charged with multiple criminal offences. Other dif iculties emerged later with this certi icate. Participants of the roundtable organized by BIRN (judges and prosecutors), contradict each-other in their statements on this issue. Prizren District Court Judge, Fillim Skoro, considered this a legal gap. According to him, the law should have envisaged the issuance of certi icates for persons under investigation and criminal charges, specifying investigation details or the criminal offences charged against the person requesting the certi icate. However, there were judges which, contrary to the former, currently issue such certi icates despite a lack of a speci ic legal provision. Aziz Podvorica, President of the Municipal Court in Podujeva, stated that his court does issue certi icates for persons under judicial 38 procedure. This leads to the application of double standards by court on the issue of investigation certi icates. Moreover, not only do courts fail in managing the process of issuing certi icates of clearance from any criminal investigations that are representative of the criminal status of the applicant, but they also apply different fees for such services. Administrative Instruction 2008/02 on the 39 Uni ication of All Fees regulates the prices, the manner and the payment of court service taxes and fees. The implementation of this instruction is still challenging in practice as the courts are yet to unify their fees. There is a large diversity in Kosovo's courts on judicial fees. Municipalities applying a fee of 3 Euro include the Municipal Court of Prizren, Suhareka, Dragash, Podujeva, Rahovec, Malisheva, Peja, Gjakova, Deçan, Ferizaj, Kamenica, Istog, Klina, Viti and Kaçanik, and those not applying a fee include the Municipal Court in Prishtina, Mitrovica, Lipjan, Drenas, Skenderaj, Vushtrri and Gjilan. In its research, BIRN has found that courts r e f e r t o t h e s a m e p r o v i s i o n o f t h e Administrative Instruction 2008/02 for payments and non-payments of investigation certi icates of employment, some courts interpret it as exempt from payment, whereas 40 others receive a payment of 3 Euro. This speci ic provision of the regulation provides: In the cases determined by this direction, a person who iles claims dealing with the work relations, except cash claims, as well as the person who is in a poor economic situation, are exempt from the payment of the fee, if the payment of the fee directly affects his existence, respectively existence of his family members or other persons who depend on him Roundtable discussion on the indings of the monitoring activity March-December. BIRN. 25 June 2012, Prishtina. Administrative Instruction No. 2008/02, Uni ication of Court Fees, Kosovo Judicial Council. < Administrative Instruction No. 2008/02, Uni ication of Court Fees, Article 7, Paragraph 1, Kosovo Judicial Council. < 29

30 Improper coordination of courts, the lack of a law or administrative instruction obliging courts to provide timely information on people subjected to a criminal procedure and non-uni ication of court fees are an issue associated with Kosovo courts in recent years. 7. Statute of Limitations The legal institution of statute of limitations, which implies the passing of legal deadlines to undertake legal action against a criminal or civil offence, has been transformed into a regular occurrence in courts and prosecution. Statute of limitations can be relative and absolute, depending on procedural actions taken for criminal prosecution and trial. Relative prescription means that the criminal offence cannot be undertaken if the legal period of no action has passed, while the absolute prescription means that the criminal offence and further procedures cannot be taken if twice the time of the prescription deadline has passed without any action. The relative deadline terminates any a c t i o n u n d e r t a k e n b y p r o s e c u t i o n procedures or trial. The lawmakers have regulated the institute of statute of limitations with the law. Chapter IX of the Criminal Code of Kosovo, envisages this institute, and provides speci ic deadlines for prescriptions in criminal prosecution and 41 execution of sanctions. Statute of limitations in civil law is covered in a series of laws. The situation is complex as the Kosovo Judicial Council has no accurate data on the number of prescribed cases. According to Besnik Ramosaj, director of statistical department in the Kosovo Judicial Council, there is no statistical report with the accurate 42 number of prescribed cases. Statistical data on the number of prescribed cases are provided by the ÇOHU organisation t h ro u g h a re p o r t o n p re s c r i p t i o n s o f prosecution and execution of criminal cases. According to this report, in the period 2001, a total of 4, 197 cases were prescribed 43 in 14 municipal courts. In addition, during court monitoring, BIRN has secured data on the number of prescribed cases in, and made a comparative analysis with data from the previous years. There are many reasons leading the judiciary to such a situation. Within this chaos, in the absence of mechanisms to keep suf icient control in the entire system, there is a bloom o f p r e s c r i p t i o n s. T h i s m u c h - s p o k e n phenomenon in judicial institutions, media and the public is a result of a negligence of courts and prosecutors to ix it Roundtable discussion on the indings of the monitoring activity March-December. BIRN. 25 June 2012, Prishtina. Administrative Instruction No. 2008/02, Uni ication of Court Fees, Kosovo Judicial Council. < Administrative Instruction No. 2008/02, Uni ication of Court Fees, Article 7, Paragraph 1, Kosovo Judicial Council. < 30

31 44 According to collected information, there are cases with a grounded suspicion of prescription. Table: Number of prescribed cases in municipalities It was thought that with the approval of the National Strategy on the Reduction of the 45 Aggregated Backlog, KJC would have been able to prevent the trend of prescriptions. Inventorying, or identifying and classifying old cases process started in November 2010, and was expected to end after one year, in November. The inventorying of cases has alleviated the situation with old cases; however, their number is increasing rapidly. O n e o f t h e m a i n re a s o n s c a u s i n g t h e prescription of cases is thought to be the negligence of judges to undertake procedural actions envisaged in the in the Law, preventing relative prescription. Such actions include cross-examining witnesses, issuing a detention decision, investigation in the scene 46 of the crime, or expertises. The impression exists that judges are intentionally concealing older cases and working with new ones, with the aim of giving favours to certain persons. There is only one KEK case on Electricity theft classi ied as a criminal offense of Theft, as per Article 252 of the CCK, in the m u n i c i p a l c o u r t o f I s t o g, o u t o f prescribed cases. 86 of such cases are with relative prescription, implying negligence by judges, and allows room for suspicion. An additional reason leading to prescription of cases is the lack of communication between courts, prosecutions and police. A large number of criminal reports have been identi ied, which are brought in prosecution by the police shortly prior to the expiration of legal deadlines for undertaking legal action (prior to prescription) In the Municipal Court in Mitrovicë, three cases risk prescription: P. nr. 58/08, Criminal Offence Aggravated theft as per Article 253 par. 1 of the CCK, P. nr. 59/08, P. nr. 59/09, Criminal Offence Smuggling of Goods as per Article 273 par. 1 in conjunction with 23 of the CCK, P. nr. 63/08, Criminal Offence Light Bodily Harm as per Article 153 par. 1, paragraph 1 of the CCK. National Strategy on the Reduction the Backlog, Decision No. 22/2010, dated This Strategy aims to enhance the dynamic of the performance of courts in case selection. Kosovo Judicial Council, Secretariat of the Kosovo Judicial Council, Court Audit Unit and Of ice of the Disciplinary Prosecutor of the Kosovo Judicial Council and all regular and minor offence courts are tasked to implement this strategy. 31

32 Thus far, there was no case when a judge or a prosecutor has been held criminally liable or disciplined for their irresponsibility or negligence in the selection of cases, and intentional relative prescription of cases, despite promises by the President of the KJC to tackle this issue. The KJC President had stated on the TV Programme Justice in Kosovo, aired on November 21,, titled Concealment of accurate statistics on prescription of cases, that judges with prescribed cases will be held accountable and c a l l e d to re p o r t why c a s e s h ave b e e n prescribed, both in relative and absolute 47 terms. Judges also agreed that the situation with prescriptions is concerning. According to the President of the Municipal Court in Kaçanik, Ramadan Gudaçi, many cases have been prescribed and many other risk prescription, and that judges who were at fault for allowing 48 prescription to occur have to be identi ied. The Judicial Appointment Process has not met the needs of courts and prosecutors' of ices in Kosovo. This fact is often used as a justi ication for prescription of cases. To this end, the Ministry of Justice has failed to allocate an additional budget to hire a large number of professional associates which could assist with invaluable tasks in these institutions, with the effect of also preparing future judges and prosecutors. Failure to improve on this situation is beyond the government's rhetoric to ix the judicial system of the country. PROCEDURAL VIOLATIONS DURING JU- DICIAL REVIEW Procedural violations and violations of the Criminal Code Behaviour of judges, prosecutors, attorneys and parties involved in the procedure is strictly determined by law; however, their real conduct is often not at the desired level. During its court monitoring exercise, BIRN n o t e d n u m e r o u s c a s e s w h e n j u d g e s, presiding judges, attorneys and prosecutors violated such laws, especially provisions of the Criminal Code. Irregular composition of the trial panel, failure to read the defendants' rights and failure to provide damaged parties' rights, represent merely some of the procedural violations noted therein. In the following sections of this report, BIRN presents a number of concrete occurrences of such violations. Although the Criminal Procedure Code of Kosovo strictly stipulates court composition, a number of cases when the composition was 49 incomplete were noted. Article 22 of the Criminal Procedure Code of Kosovo explicitly regulates the composition of the trial panel, with the court acting with a sole judge, or a trial panel, depending on the phase of proceedings or severity of the criminal deed under review "Concealment of Accurate Statistics on Case Prescription." TV Programme 'Life in Kosovo'. 21 November < Roundtable discussion on the indings of the monitoring activity March-December. BIRN. 25 June 2012, Prishtina. Criminal Procedure Code, Article 22, Paragraph 1-5; Article 24, Paragraph

33 There were cases when the judge commenced and concluded the proceedings, without complete composition of the trial panel, or in 50 absence of one or more trial panel members. Absence of lay-judges in the hearing is a 51 suf icient reason for postponement of a trial, in the event that the hearing is held in their absence there is an essential violation of 52 criminal proceedings. There were also other cases in which the trial panel, although in incomplete composition, issued judgments, which is in clear violation of the Criminal Code, in which defendants were issued sentences that are lower than the ones envisaged in the Criminal Code of Kosovo. Issuance of lower sentences was applied against people that committed election-related fraud, with sentences usually b e i n g l i g h t e r a n d t r a n s f o r m e d i n t o conditional sentencing or ines. Only during June, 10 hearings on 'Election Fraud' were held in the Municipal Court in Drenas, for which the imprisonment sentence of between six months and ive years is stipulated. The court had not issued any sentence longer than three months imprisonment or ined anyone over 1, 350 Euro. There were occurrences of even lighter sentences, like two months imprisonment or 900 Euro ine, or one month imprisonment or 450 Euro ine. Procedural violations in reading out party rights continue to be present in courts of all instances whereby the parties concerned are not informed on their respective rights as part of the hearing process The Criminal Procedure Code of Kosovo clearly foresaw that defendants in all phases of procedure should be informed of their rights by the 53 judge or presiding judge. The hearing at the District Court in Prishtina r e g a r d i n g a g g r ava t e d m u r d e r i n c o - commission, case P. No. 215/10, which had recommenced since over three months had passed from the last hearing, the presiding judge Hajrije Shala did not inform the defendants on their rights during the hearing, as required. In case P. No. 41/11 at the Municipal Court in Istog, presiding judge Zymber Geci failed to inform the defendant of his rights during the review hearing. The defendant was accused of aggravated theft. At the Municipal Court in Prishtina, in case P. No. 1397/09 trialling the misuse of public position, authorisations and slander, judge Faik Hoxha failed to request the respondent's personal data (which is obligatory bearing in mind he is party to the claim-suit) and to read his rights In the Municipal Court in Prishtina, in the criminal case P.nr: 1036/07, where the defendants are accused of the criminal offence of Unauthorised Purchase, Possession, Distribution and Sale of Dangerous Narcotic Drugs and Psychotropic Substances, sanctioned with Article 229 of the CCK. The Presiding Judge, although not in full composition of the trial panel, in the absence of one Lay Judge, started the session and held in until the end, whereas the minutes had concluded that lay judge was present. A similar case was also seen in a hearing in the Municipal Court in Viti, where in October a hearing of the case P.nr:554/05 was held. The defendant, according to the indictment of the prosecution, was accused of the criminal offence of Forest Theft as per Article 285, paragraph 2, of the CCK, punishable with imprisonment of 8 months to 5 years. This trial panel should have been in the composition of one Professional and two Lay Judges, as envisaged by article 22, paragraph 1 of the CPCK. However, one lay judge was not present, and the trial panel was in full composition. Criminal Procedure Code, Article 339. Criminal Procedure Code, Article 403, Paragraph 1. Criminal Procedure Code, Article 356, Paragraph 2. 33

34 Among other rights envisaged by the relevant criminal laws is the right of the defendant to pose questions to witnesses during their 54 examination. In its monitoring, BIRN noted cases when defendants were not granted the opportunity to pose questions to witnesses. However, even when such parties were allowed to pose questions, other violations of the criminal procedure code were observed, as the latter clearly delineates the procedure f o r i n t e r r o g a t i o n s o f w i t n e s s e s a n d 55 defendants. Moreover, in certain monitored cases the interrogation order was not adhered to. Over the last few months EULEX has been conducting hearings on the case known as the 'Tisa Case' at the District Court in Prishtina (P. No. 244/10). During these hearings presiding judge Gianfranco Gallo often crossed to the jurisdiction of the prosecutor by posing questions to witnesses and defendants during their examination. Moreover, in one of the hearings, the presiding judge posed questions for 40 minutes, during the time when the prosecutor was to conduct his cross-examination. In May 2001, at the District Court in Peja a hearing was held on case P. No. 96/10, for the criminal offence of murder, in which the presiding judge Shaban Shala failed to provide the damaged party the opportunity to pose questions to the defendant. Another example also in May emerged from the District Court in Prishtina. The the criminal case referenced as P. No. 99/10 in relation to criminal offences of organised c r i m e a n d u n a u t h o r i s e d p u r c h a s e, p o s s e s s i o n, d i s t r i b u t i o n a n d s a l e o f dangerous narcotics was chaired by the EULEX judge Gianfranco Gallo, who was noted to have interrupted the prosecutor during his interrogation, instructing him how to pose questions. He posed his questions for the following forty minutes. Despite the fact that the criminal law allows all parties to pose questions in a direct manner or through the presiding judge, BIRN has observed cases where judges/presiding judges do not provide the defendants and the damaged parties the opportunity to raise questions to witnesses. At the District Court in Peja, during March and April, hearings were held on criminal case P. No. 336/10 on aggravated murder, under the leadership of an EULEX judge. The presiding judge Guunar Oyhaugen failed to grant the opportunity to the damaged party to raise questions to the defendant in any of the six monitored hearings. Procedural violations also occurred in defendants' presentation of their defence. The Criminal Procedure Code stipulates that the co-accused, who had not been subject to interrogation, should not be present during 57 the interrogation of the accused. Contrary to this provision, BIRN monitored cases where the presence of all defendants was observed Criminal Procedure Code, Article 165, Paragraph 1. Criminal Procedure Code Article 165; Article 372. Criminal Procedure Code Article 165, Paragraph 3. Criminal Procedure Code Article

35 while their co-defendant was presenting their defence. There were also cases when they countered and corrected each-other's testimonies. At the District Court in Peja, presiding judge Lumturije Muhaxheri conducted a hearing in March in relation to case number P.M.Q. No. 4/11 on the criminal offence of robbery, committed by juvenile perpetrators. While the second defendant was presenting his defence, the third defendant was in the courtroom and listening to the testimony of the co-accused. A hearing on criminal offence of theft with case number P. No. 1034/08 was held at the Municipal Court in Peja, in March in which two individuals were charged as coperpetrators. After the presentation of evidence, judge Sami Sharraxhiu invited the irst defendant to present her defence, while the other defendant was in the courtroom. During the statement of the irst defendant, the other co-defendant would interrupt and c o u n t e r h e r a l l e g a t i o n s. M o r e o v e r, interrupting and countering her statement was the second defendant's brother who was in the audience. Ferizaj Municipal Court Judge, Agim Maliqi, stated that procedural violations on the full composition of the trial panel are concerning. According to him, this is unacceptable He said that if there were indeed cases when the trial panel commenced and proceeded with the trial without full composition, the Presiding 58 Judge should be held criminally liable. Conclusions The Court or more speci ically the presiding judge is obliged to ensure adherence to the trial panel requirements stipulated in the CPCK and it should be noted that the absence of one of the trial panel members suf ices for the judicial review to be postponed. Moreover, the Court should always ensure ful ilment and compliance with the rights of defendants, damaged parties and witnesses. The Court should respect the CCK and CPCK in issuing sentences for parties in procedure, and should ensure adherence to both aforementioned codes at all times. 58. Roundtable discussion on the indings of the monitoring activity March-December. BIRN. 25 June 2012, Prishtina. 35

36 IV. Findings from trials 1. H e a r i n g s s c h e d u l e d w i t h o u t c o o r d i n a t i o n b e t we e n j u d g e s a n d prosecutors According to the applicable civil and criminal law provisions, hearings should be scheduled 59 by courts. In most cases, the court strives to coordinate the hearing schedule with other parties in procedure, including the public prosecutor and defence counsel. The situation on the grassroots level shows that the parties are not coordinating in scheduling hearings. This phenomenon occurs across Kosovo courts, especially in the municipal courts of Malisheva, Rahovec, Kamenica, Vushtrri, Istog, Klina and Deçan, in most of which the prosecutor only appears once a week, in order to represent the relevant indictments. In the Municipal Court of Rahovec, on December 22, at 11:00 Prosecutor Sefer M o r i n a wa s s u p p o s e d t o p re s e n t t h e indictment in two different hearings, namely in cases Ka.No. 258/ and P. No. 261/09. In the Municipal Court in Malisheva, two hearings on cases P. No. 14/08 and P. No. 373/08 were scheduled at the same time, whereas the responsible prosecutor in both cases was Beqë Shala. In the Municipal Court in Vushtrri, in the hearing regarding case number P. No. 08/10 held on October 10,, on the criminal offence of endangerment of public traf ic, the verdict was postponed due to the absence of Prosecutor Naim Beka, who was at the same time presenting the case in a different case involving juvenile perpetrators. At the Municipal Court in Peja a delay of over an hour occurred in the hearing held on December 10,, on the criminal offence of illegal abduction of children, which was conducted by judge Hidajete Veseli. The delay was a result of the presence of Prosecutor Vlora Banushaj in a different hearing in the same court. These were just some of the monitored instances, which continue to prevail in hearings and courtrooms around Kosovo and which result in an ever greater backlog. In Municipal Court in Peja, there was a delay in the conduct of the hearings in case number P. No. 279/08 and P. No. 189/10 held on June 1,, and December 12,. In the former case, the delay was caused by the Chief Prosecutor Lirie Morina, and in the latter case by her colleague Vlora Banushaj. While in the former case, chief prosecutor claimed to be unable to attend all cases; in the latter the prosecutor said that her delayed arrival was a result of her presentation of a different indictment at the same time. 59. Law Contested Procedure, Article 123; article 319, Paragraph 1. 36

37 In addition to cases in which judges and prosecutors are unable to show the highest level of punctuality in attending the hearings, B I R N h a s a l s o m o n i t o r e d n u m e r o u s occasions where attorneys are unable to coordinate with the court regarding their representation of rights of parties in proceedings, which also, in turn, results in postponement of trials. At the District Court in Prizren, in the hearing regarding case number KA. No.109/11 on traf icking of human beings, held on October 4,, conducted by judge Vitol Jakingo and attended by prosecutor Agron Matjani and his Polish colleague from EULEX, attorney Hajrip Krasniqi expressed his remarks on the fact that hearings were scheduled without any coordination with the attorneys. It was claimed that all this makes the presence of all attorneys in the given dates impossible. The other attorneys also had similar remarks. However, the presiding judge said that after the conduct of the initial main hearing, the other hearings would be scheduled in coordination with the parties involved with the procedure. In another case at the District Court in Prizren, on 'Attempted murder', from Article 1 4 6, i n c o n j u n c t i o n w i t h A r t i c l e 2 0, ' U n a u t h o r i s e d o w n e r s h i p, c o n t r o l, possession and use of weapons' from Article 328, paragraph 2, and 'Light bodily harm' from Article 153, paragraph 1 of the CCK, case number P. No.187/07, a hearing was held on October 13, and attended by judge Vaton Durguti and prosecutor Mehdi Sefa. Initially certain formalities were addressed; however, the hearing had to be postponed for an hour because of the absence of the defence attorney. As a result, the hearing commenced having been delayed for 1 hour and 25 minutes. The attorney justi ied his late arrival with the fact that he was not invited in compliance with the standard invitationex tending p ro c e d u re s. T h i s wa s a l s o con irmed by the presiding judge. Poor coordination between judges and prosecutors is also admitted by prosecutors. Gjakova Municipal Prosecutor, Ali Selimaj, stated in the Roundtable and discussion on the indings of the judiciary monitoring exercise, organized by BIRN on June 25, 2012, that there is no proper coordination between judges and prosecutors in allocating cases. He reasons this with the fact that only two or three cases have been allocated to him personally, and that he inherited other cases from his predecessor. The small number of available prosecutors, e v e n a f t e r t h e c o n c l u s i o n o f t h e appointment/reappointment process, c o n t i n u e s t o r e m a i n t h e p e r m a n e n t justi ication of the relevant prosecutor of ices for their failure to adequately represent all cases. The court monitoring report for the period May 2010 April enabled BIRN to address the lack of coordination between judges and prosecutors, especially in relation to the scheduling of court hearings. 60. Roundtable discussion on the indings of the monitoring activity March-December. BIRN. 25 June 2012, Prishtina. 37

38 Conclusions A better coordination between judges and prosecutors in scheduling court hearings would result in less cancellations and postponements of hearings. Even though there is a great engagement among judges and prosecutors, we consider that court presidents and chief prosecutors are obliged to implement better discipline and attend the hearing session with the highest time punctuality. 2. Late commencement of hearings Trials in Kosovo courts continue to start with delays. In comparison to data from the previous year, there is a slight improvement to this end. During the reporting period, of 1, 920 court hearings held, 35.21% commenced after delays, which represents an improvement in comparison to last year when BIRN reported 61 that 47% of the hearings had started late. Number of monitored hearings that have (not) commenced on time Late arrival of trial panels is one of the most frequent reasons for late commencement of hearings. 61. Courts Monitoring Report April 2010 February. BIRN. Prishtina. September 38

39 Bearing in mind that the hearing schedules are usually set by the trial panel this is rather strange and unacceptable. In comparison to the previous year, late commencement of hearings due to the late arrival of the trial panel or judge has increased, to 25.41% of all court hearings monitored. In 2010, this occurred 14.6% which equates to 314 of 2, 147 hearings. Court cases below illustrate late commencement of trials. A trial held on March 23, at the District Court in Prizren, on the criminal offence 'Participation in a crowd committing a criminal offence', from Article 320, paragraph 2, in conjunction with paragraph 1 of the CCK, and Illegal Possession of Weapons, from Article 328, paragraph 2 of CCK', case number KA. No. 24/11, the judge Xhevded Elshani arrived to the session with a 40 minute delay.. During this time, parties remained waiting in the courtroom, unhappy with the delay caused by the judge, who was conducting a different con irmation hearing at the very same time. Moreover the defendant's counsel went to the judge's of ice to present a verbal complaint on behalf of the colleagues, noting that if this occurrence would be repeated, the complaint would be submitted in a written form. Similarly, monitoring in the Municipal Court in Ferizaj identi ied cases in which hearings started with a delay, because of the late arrival of the trial panel/judge. Below is a list of such cases: C. N o / 1 0, h e l d o n , Ownership con irmation, P. No. 268/07, held on , 'Theft', from Article 252, paragraph 1, of CCK. C. No. 504/05, held on , P. N o / 1 0, h e l d o n , 'Endangerment of public traf ic', from Article 297, paragraph 3, in conjunction with paragraph 1 of CCK. P. No 130/10, held on , 'Slander', from Article 188, paragraph 1 of CCK. P. No. 30/10, held on , 'Slander', Article 188, paragraph 1 of CCK. A similar case was also noted in the Municipal Court in Skenderaj, whereby the hearing on case P. No. 09/11 scheduled for 10:00 on October 12,, started at 10:40 because of delays caused due to the late arrival of the judge.. At the District Court in Prishtina, the largest of all district courts, there were numerous occurrences in which hearings started late because of the late arrival of the judge/trial panel. A hearing held on September 6,, focusing on the case of 'War crimes against c iv i l i a n p o p u l a t i o n a n d p rov i s i o n o f assistance to a criminal offender', P. No. 411/10, also referred to as the 'Bllaca Case', presided by the trial panel: Horst Poetel, presiding judge, Tore Tomasson and Rafet Haxhaj members, started with a 35 minute delay because of the late arrival of the trial panel members, the prisoner transport unit and the special prosecutor Mauricio Salustro. In the District Court in Peja, the hearing held o n O c t o b e r 2 4, o n 'A t t e m p t e d aggravated murder', from Article 147, paragraph 4, in conduction with Article 20 of CCK; 'Unauthorised ownership, control, possession or use of weapons', from Article 328, 39

40 paragraph 2 of CCK; 'Intimidation' from Article 161, paragraph 2 of CCK, with case number P. No. 249/11, the hearing started with a 40 minute delay due to the late arrival of the trial panel comprising: Sali Berisha, Shaban Shala and three lay-judges. A late start at the same court also occurred in the hearing held on October 17,, on 'Attempted murder', from Article 146, in conjunction with Article 20 of the CCK; and ' U n a u t h o r i z e d o w n e r s h i p, c o n t r o l, possession or use of weapons', from Article 328, paragraph 2 of CCK, case number 210/09, in which the trial panel comprising Elmaze Syka, Muharrem Shala and three layjudges arrived late at the courtroom. Reason for hearings not commenced on time However, the root cause of postponement of hearings has not always been the late arrival of the trial panel. Late arrival of prosecutors, attorneys, parties and interpreters were also noted as reasons for procrastination and late commenced of a signi icant number of trials. Out of 1, 920 monitored hearings, 117 hearings (or 17.49%) started late due to the late arrival of prosecutors. This represents an increase in occurrence, in comparison to the previous year (8.6%). The Supreme Court of Kosovo started its hearing on 'War crimes against civilian population and provision of assistance for a criminal offender' with a delay of 1 hour and 20 minutes. 40

41 The special prosecutor appointed to the hearing number P. No. 411/10 (Bllaca case) failed to attend the trial at the agreed commencement time. Prosecutor Salustro was 50 minutes late, whereas the witnesses were late for an additional 30 minutes, thus delaying the beginning of this hearing for 1 hour and 20 minutes. The trial panel comprised Horst Proetel, presiding judge, and Tore Tomasson and Rafet Haxhaj, members. Late arrival was also evident in the Municipal Court in Prishtina. The hearing held on April 13,, on 'Endangerment of public traf ic', from Article 297, paragraph 1 of CCK, case number P. No. 2099/07, started with a 30 minute delay. The reason for this delayed start was the late arrival of Prosecutor Ferdane Sylejmani, whom was not present in the hearing although she was adequately served to invitation. The hearing was conducted in the judge's of ice, and the parties were invited in her of ice for the entire waiting time, because of the severe dust in the corridor as a result of court renovation endeavours. In another case at the Municipal Court in Prishtina, the hearing conducted by Judge Shpresa Hyseni, held on November 23,, on the case referenced as P. No. 1950/09, 'Bribe' from Article 343, paragraph 1 of CCK, started with a 45 minute delay because of the late arrival of Prosecutor Faik Halilaj. Similar late commencements were also viewed in Vushtrri, Suhareka, Drenas, etc., and late arrival of the prosecutor was seldom the root cause. In Municipal Court in Vushtrri, case number P. No. 49/09, hearing held on September 27,, Prosecutor Naim Beka arrived at the courtroom at 13:50, although the trial was scheduled for 13:30. In the Municipal Court in Suhareka hearing held on March 21, started with a 40- minute delay because of the late arrival of Prosecutor Arben Ramadani. The case pertained to 'Endangerment of public traf ic', from Article 297, paragraph 3, in conjunction with paragraph 1 of CCK, case number P. No. 292/05 and was presided by Robert Tunaj. Similarly, at the Municipal Court in Drenas hearings often start with delay. In the hearing held on March 10,, on 'Endangerment of public traf ic', from Article 297, paragraph 5, in conjunction with paragraph 3 and 1 of CCK, case number 37/07, Prosecutor Ali Hajdini arrived at the hearing 1 hour after its planned schedule. Presiding judge in this hearing was Shefqet Baleci. Prosecutor Mirushe Llugiqi was the reason for the 40-minute delay of another trial held in this court on March 29,. The case pertained to 'Theft' from Article 252, paragraph 1 of CCK, case number P. No. 354/09, and was presided by Shefqet Baleci. 41

42 On the other hand, in addition to the late arrival of judges and prosecutors, other parties in procedure, including parties' defence attorneys, also showed negligence and failure to respect trials and the court by being late to trials. Except for the late arrival of judges and prosecutors, the late arrival of other parties in procedure, including defence attorneys, also stands witness to the negligence and failure to respect trial schedules and the court. Trial panels and judges are obliged to issue sanctions in cases when the latter do not respond to regular invitations or arrive late at hearings. Although they face delays and procrastinations, trial panels and case judges have been noted to show reluctance in issuing s a n c t i o n s o r u n d e r t a k i n g n e c e s s a r y measures against those that cause such delays. At the District Court in Prizren, the hearing held on March 15, on 'Attempted murder', from Article 146 in conjunction with Article 20, 'Illegal possession of weapons', from Article 328, paragraph 2, 'Light bodily harm', from Article 153, paragraph 2 of CCK, case number P. No. 201/10, conducted by j u d g e X h e vd e t E l s h a n i, wa s i n i t i a l ly postponed for an hour, in order to wait for the arrival of counsellor Qollaku. After one hour of delay, the judge issued a 'public warning' to Qollaku, justifying his decision with the fact that she knew that the trial would start at 10:00 and that she failed to show respect for the court and her client. Late arrival of attorneys, causing delayed commencement of trials, was also noted in the Municipal Court in Lipjan. The hearing held on April 7, on 'Annulment of a contract', case number C. No. 31/2000, conducted by judge Jusuf Bytyqi, started with a two hour delay because of the late arrival of attorney Naser Gashi, a member of the Kosovo Judicial Council. The District Court in Peja also started its hearings late. The hearing held on March 31,, on 'Murder and attempted murder in co-perpetration', from Article 146, in conjunction with Article 20 and Article 23; Article 146 in conjunction with Article 23 of CCK, case number P. No. 217/08, conducted by the following trial panel composition: Sali Berisha, Sylë Lokaj and three lay-judges: Ramiz Baloku, Enver Dranqolli and Turhan Gjikolli, started with a 40 minute delay because of the late arrival of the defence attorney of the second defendant, who was engaged in a different criminal proceeding at the same court. The trial held on April 21, on 'Murder in co-perpetration and failure to provide assistance', from Article 146 in conjunction with Article 23 and Article 156, paragraph 1 of CCK, case number P. No. 94/10, started with a 35-minute delay because of the late arrival of attorney Zenel Mekaj, who was engaged in a different trial held at the same time and was 35 minutes late. The trial panel comprised: Lumturie Muhaxheri presiding judge, Gëzim Pozhegu member and Zehra Elezi, Ismet Imami and Nysret Bala, layjudges. The representative of the plaintiff caused the delay of the commencement of proceedings in the hearing held on May 17, at the Municipal Court in Suhareka. The case pertained to 'Claim-suit for compensation of damage caused by death', case number C. No. 74/09, presided by judge Robert Tunaj. 42

43 Other reasons causing delays in proceedings, which continue to reoccur, include late arrival of parties, late conclusion of other prior hearings and transport and parties. Below is a list of such monitored cases: Municipal Court in Skenderaj - hearing held on September 30,, case number C. No. 245/10, started with a delay because of the late arrival of parties. Municipal Court in Suhareka hearing held on May 16, case on 'Document fraud', from Article 332, paragraph 3, in conjunction with paragraph 1 of CCK, case number P. No. 341/09, presided by judge Avdyl Elshani, started with a 25 minute delay because of the late arrival of the defendant. District Court in Peja hearing held on September 6, case 'Unauthorised ownership, control, possession or use of weapons', from Article 328, paragraph 2 of CCK, case number P. No. 70/11, trial panel comprising Gëzim Pozhegu and two layjudges, was not at all announced in the court's information board and started with a 35- minute delay because of the length of proceedings of the previous hearing. Municipal Court in Drenas hearing held on March 15,, case 'Damage of movable property', from Article 260, paragraph 1 of CCK, case number P. No.. 170/09, presided by judge Shefqet Baleci, was announced in the information board, and conducted in the courtroom with 1 hour and 35 minute delay, caused by a lengthy former hearing. Municipal Court in Ferizaj hearing held on November 1, case number 232/04, on 'A g g rava t e d t h e f t ', f ro m A r t i c l e 2 5 3, paragraph 1 of the CCK, and hearing held on October 6, case number C. No. 201/08 on 'Con irmation of ownership' were delayed because of the late arrival of interpreters. Municipal Court in Podujeva hearing held on November 10, case pertaining to 'Con irmation of ownership', case number 251/07, presided by judge Virginia Rusova, started with a two hour delay because of the late arrival of interpreters at the court. Courts in Peja, Prishtina, Prizren and Podujeva are among the courts with the most frequent occurrence of late commencement for the reasons mentioned above. On the other hand, more punctual are the municipal courts in Ferizaj and Vushtrri. Conclusion Late commencement of hearings continues to represent one of the main de iciencies of court hearing, which we consider can be avoided with a little additional effort. Late commencement of hearings causes problems for the conduct of other hearings, which have to consequently be postponed. Also, taking into account the large number of unresolved cases, late commencement of hearings continues to further complicate court proceedings, to cause procrastination of hearings and to increase the number of unresolved cases. 43

44 3. Unpreparedness of prosecutors in hearings According to the CPCK, the public prosecutor is a party of judicial proceedings, obliged to prosecute ex of icio criminal offences 62 envisaged by Kosovo's criminal legislation. In its monitoring, BIRN identi ied numerous cases where case prosecutors came to court hearings unprepared. At the Municipal Court in Drenas, in the hearing held on October 13, the case prosecutor Shkëlzen Maliqi made a number of mistakes, and even repeated the same sentence a number of times, which shows his lack of preparedness for the hearing. He justi ied his position with the fact that he was only handed over the case ile when he was deploying to Drenas, thus putting the blame on the prosecutor's registrar. The case pertained to 'Aggravated theft', from Article 253, paragraph, item 1, in conjunction with Article 34 of CCK, case number KA 83/11, presided by Daut Behrami. The other prosecutor from the Municipal Prosecutor in Prishtina, Imer Beka, came unprepared to the hearing held on April 12,. Moreover, the prosecutor was even not in possession of the indictment. The case pertained to 'Endangerment of public traf ic', from Article 297, paragraph 5 of CCK, P. No. 508/10, presided by judge Nexhmedin Sejdiu. However, it has been noted that's not only municipal prosecutors go to court hearings unprepared. Even in more severe criminal cases, such as those represented by the special prosecutor, our monitoring has 63 identi ied cases of unprepared prosecutors. A glaring example of this is the hearing held on July 20, at the District Court in Prishtina, pertaining to 'Misuse of of icial post or authorisation, Traf icking of migrants, P rov i s i o n o f p ro s t i t u t i o n a n d M o n ey Laundering' from Article 339, paragraph 1, in conjunction with paragraph 23, Article 138, paragraph 1 and 3 in conjunction with Article 23, Article 201, paragraph 3 of CCK and Article 11 of UNMIK Regulation 2006/53, case number P. No. 20/10, started with the proposal of the prosecutor to read a number of material evidence, mostly police reports. The defence objected that proposal, while the presiding judge requested additional explanations regarding such reports. The Special Prosecutor had no explanation to substantiate his proposal for the inclusion of the said evidence or its purpose. It was evident that the prosecutor was not prepared for the hearing, as he gave the impression that he was not even aware of the subject matter. During the hearing, perhaps because of his unpreparedness, the prosecutor was forced to read from the material evidence he was proposing to be included as evidence for the court Criminal Procedure Code of Kosovo, Section IV. Roundtable discussion on the indings of the monitoring activity March-December. BIRN. 25 June 2012, Prishtina. 44

45 Due to his unpreparedness, the prosecutor caused confusion later in the hearing after he was asked by the judge on the name of an individual. After the presiding judge tried to explain to the prosecutor what he was supposed to do, as the latter did not know how to handle the hearing, she decided to declare the entire evidence as inadmissible, and allowed the invitation of the policeman that prepared the report to the witness stand. BIRN monitoring revealed even more extreme cases when the presiding judge starts to interrogate the prosecutor in the given subject, although he had concluded his closing remarks. In a trial held on November 20, at the District Court in Prishtina, after the District Prosecutor in Prishtina, Fekrije Fejzullahu, concluded her inal remarks on the indictment, the presiding judge starting posing questions on the indictment. Judge Hamdi Ibrahimi asked the prosecutor to tell and analyse which evidence is related to which action and to adequately justify the a l l e g a t i o n s, a n d n o t o n ly t o re a d t h e indictment which is becoming a common practice now. The presiding judge offered the prosecutor another possibility to prepare. After this r e a c t i o n b y t h e p r e s i d i n g j u d g e, t h e prosecutor asked from the trial panel to provide her some time to better prepare for the inal remarks. The case pertained to 'Armed robbery in co-perpetration', from Article 255, paragraph 3, in conjunction with paragraph 1, all in relation to Article 23 of CCK, case number P. No. 268/09. It is even more disturbing when the same prosecutor turns up unprepared to the inal presentations for the same case, after one month, regardless of the warnings given in the previous hearing. Although over the past years BIRN has a d d re s s e d t h e p ro b l e m o f t h e l a c k o f preparation by prosecutors in trials, and even cases when prosecutors go to the court h e a r i n g s w i t h o u t e v e n c a r r y i n g t h e respective indictment, such phenomena continue to plague Kosovo's judiciary. BIRN identi ied numerous cases when the prosecutor presented the indictment, without even carrying it to the court. In many cases, they would borrow the indictment from the judge/trial panel. A similar situation took place in the hearing held on April 29, at the Municipal Court in Suhareka on 'Aggravated theft', from Article 253, paragraph 1 of CCK, case number KA- 13/11. The case prosecutor, Elfete Purova, did not have a copy of the indictment hence she borrowed it from Judge Nuredin Abazi. On the same day, in the criminal case 'Severe body injuries', from Article 154, paragraph 1 of CCK, the same Prosecutor Elfete Purova, borrowed the indictment from the same judge, thus continuing to chair the indictment as unprepared. 45

46 Similar cases of prosecutors coming to trials without the indictment are also noted at the Municipal Court in Prishtina. This occurred in a hearing held on April 12, when the prosecutor of the criminal case 'Endangerment of public traf ic', Imer B e k a, c a m e t o t h e t r i a l w i t h o u t t h e indictment, whereas, on the other hand, judge Nexhmedin Sejdiu answered his phone calls while the trial was under progress.. T h e p r o c e s s o f a p p o i n t m e n t a n d reappointment of judges and prosecutors brought new prosecutors, but failed to ful ill all vacant places in prosecutors' of ices of all levels. In fact, it is the inherent lack of prosecutors that forces them to come unprepared and to represent indictments of their colleagues. Similar to last year, the justi ication of prosecutors is the insuf icient number of prosecutors, which forces prosecutors to represent numerous indictments, and in certain cases, to go to trial without an 64 indictment and ask a copy from the judge. Conclusions Tr i a l p a n e l s s h o u l d n o t i f y t h e c h i e f prosecutor on the unpreparedness of prosecutors, especially on their appearance i n t h e c o u r t r o o m w i t h o u t c o p i e s o f indictments. T h e c h i e f p ro s e c u t o r s h o u l d a t l e a s t undertake disciplinary measures against such prosecutors, in order to assure all stakeholders that the prosecutors will perform their functions appropriately. 4. Passiveness of trial panel members (layjudges) in hearings The courts appoint trial panels based on the we i g h t o f t h e c r i m i n a l o ff e n c e. B I R N monitoring identi ied that in 177 of 460 hearings (38.47%) with lay-judges appointed in the trial panel which were monitored by BIRN, lay-judges were entirely passive. Their passiveness has decreased signi icantly in comparison to the previous year, when layjudges were passive in 63.10% of monitored hearings. This is the most common justi ication among prosecutors, and is largely founded. However, this does not justify the lack of preparedness and attending trials without the appropriate documentation relating to the case. In such cases, the trial panel should deliberate whether conditions to proceed with the trial exist or not. 64. Roundtable discussion on the indings of the monitoring activity March-December. BIRN. 25 June 2012, Prishtina. 46

47 Number of monitored hearings in which lay judges were (not) active Trial panel members, namely lay-judges, have the right to take active part in proceedings, to pose questions and vote in the consultation procedure for case deliberation. Unfortunately, the prevailing situation in the ield, as monitored by BIRN, shows that layjudges do not play an active role in trials. Their passiveness is so acute that BIRN has made note of cases when lay-judges even fall asleep during trials. Our monitoring reveals that in most cases layjudges continue to be part of the trials only to ful il the formal legal requirement pertaining to the trial panel composition. One such event was the hearing held on November 17, in the District Court in Prishtina, on 'Aggravated murder', from Article 147 of CCK, when lay-judge Hamëz Mehmeti fell asleep during the testimony of witness V.K. Presiding judge was Mejdi Dehari. Conclusions: Trial panel members lay judges, should be more proactive during court hearings. In addition to active participation in hearings, with their questions, they should also be involved with the consultation and voting procedures while deliberating. 47

48 The responsibility to ensure this falls on presiding judges, who should respect all j u d i c i a l p r o c e d u r e s r e g u l a t i n g t h e engagement, tasks and obligations of trial panel members. 5. Witness testimonies in trials During court hearings, witness testimonies represent among the most signi icant material evidence, considered key for revealing the truth and deliberating the case. Similar to the indings of the previous report, during the monitoring of court hearings BIRN has identi ied cases when witnesses did not appear at the hearing. Although Article 167 of CPCK envisages a ine for the absence of witnesses, it was observed that out of 1, 920 monitored hearings, two occasions were associated with ines for failure to appear in court. One such event occurred at the Municipal Court in Prizren, during the hearing held on March 1, on 'Light bodily harm', from Article 153 of CCK, case number P. No / 0 8, c o n d u c t e d b y j u d g e S e i d i n Bajraktari, and presented by Prosecutor Sefer Morina. The judge ined both the damaged party and the witness for failing to appear in court with 50 Euro. The decision on this ine will be submitted to all parties along with the new invitations for future hearings. September 13, Case: 'Theft', from Article 252, paragraph 1 of CCK, case number P. No. 819/07, conducted by judge Bashkim Hyseni. The hearing was postponed as the damaged party (R.T) and the witness (M.T) were absent. They were extended their regular invitations and they did not justify their absence from the court, hence, the court issued an arrest warrant. Municipal Court in Ferizaj, hearing held on November 1,, Case: Light bodily harm', from Article 153, paragraph 1, sub-paragraph 4 of CCK, case number P. No. 1137/10, conducted by judge Agim Maliqi. As witness H.A. was absent from the hearing, the public prosecutor proposed to the court to summon her for the next hearing. Municipal Court in Malisheva, hearing held on December 9,. Case: 'Theft', from Article 252, paragraph 1 of CCK, case number P. No.183/08, conducted by judge Haki Kryeziu. A b s e n t i n t h e h e a r i n g w e r e t h e K E K representative A.F. and the witnesses A.M, N.F. and M.B. All parties were duly invited and failed to justify their absence. Municipal Court in Rahovec, hearing held on November 29, Case: 'Endangerment of public traf ic', from Article 297, paragraph 3 of CCK, case number P. No. 245/11, conducted by judge Shaban Shala. Absent from the hearing was witness B.K. who was invited well in advance. In the monitored hearings, there were n u m e ro u s c a ses o f a b sent w i t n e sses, although they were extended regular invitations. A number of such cases are listed below: Municipal Court in Ferizaj, hearing held on 48

49 The responsibility to ensure this falls on presiding judges, who should respect all j u d i c i a l p r o c e d u r e s r e g u l a t i n g t h e engagement, tasks and obligations of trial panel members. 5. Witness testimonies in trials During court hearings, witness testimonies represent among the most signi icant material evidence, considered key for revealing the truth and deliberating the case. Similar to the indings of the previous report, during the monitoring of court hearings BIRN has identi ied cases when witnesses did not appear at the hearing. Although Article 167 of CPCK envisages a ine for the absence of witnesses, it was observed that out of 1, 920 monitored hearings, two occasions were associated with ines for failure to appear in court. One such event occurred at the Municipal Court in Prizren, during the hearing held on March 1, on 'Light bodily harm', from Article 153 of CCK, case number P. No / 0 8, c o n d u c t e d b y j u d g e S e i d i n Bajraktari, and presented by Prosecutor Sefer Morina. The judge ined both the damaged party and the witness for failing to appear in court with 50 Euro. The decision on this ine will be submitted to all parties along with the new invitations for future hearings. In the monitored hearings, there were n u m e ro u s c a ses o f a b sent w i t n e sses, although they were extended regular invitations. A number of such cases are listed below: Municipal Court in Ferizaj, hearing held on September 13, Case: 'Theft', from Article 252, paragraph 1 of CCK, case number P. No. 819/07, conducted by judge Bashkim Hyseni. The hearing was postponed as the damaged party (R.T) and the witness (M.T) were absent. They were extended their regular invitations and they did not justify their absence from the court, hence, the court issued an arrest warrant. Municipal Court in Ferizaj, hearing held on November 1,, Case: Light bodily harm', from Article 153, paragraph 1, sub-paragraph 4 of CCK, case number P. No. 1137/10, conducted by judge Agim Maliqi. As witness H.A. was absent from the hearing, the public prosecutor proposed to the court to summon her for the next hearing. Municipal Court in Malisheva, hearing held on December 9,. Case: 'Theft', from Article 252, paragraph 1 of CCK, case number P. No.183/08, conducted by judge Haki Kryeziu. A b s e n t i n t h e h e a r i n g w e r e t h e K E K representative A.F. and the witnesses A.M, N.F. and M.B. All parties were duly invited and failed to justify their absence. Municipal Court in Rahovec, hearing held on November 29, Case: 'Endangerment of public traf ic', from Article 297, paragraph 3 of CCK, case number P. No. 245/11, conducted by judge Shaban Shala. Absent from the hearing was witness B.K. who was invited well in advance. 49

50 Municipal Court in Rahovec, hearing held on November 22, Case: 'Theft', from Article 252, paragraph 1 of CCK, case number P. No. 261/09, conducted by judge Shaqir Zika. The judge concluded that absent from the hearing were the defendant, who was duly invited, and witness A.J. also duly and timely invited. None of them justi ied their absence. Present in the hearing was the damaged party A.SH. Municipal Court in Rahovec, hearing held on N o v e m b e r 2 2, C a s e : ' I l l e g a l construction works', from Article 294, paragraph 2/1 of CCK, case number P. No. 13/07, conducted by judge Shaqir Zika. The hearing was not held due to the absence of the defendant and a number of witnesses (including witness I.B). Municipal Court in Suhareka, hearing held on April 15,. Case: 'Claim-suit for return of debt', case number C. No. 294/08, conducted by judge Shaban Zeqiri. Absent from the hearing were witness XH.R, regularly and duly invited but declined the invitation; and H.RR., present in the hearing of April 4, and verbally invited for the subsequent hearing. He has not justi ied his absence. Taking into consideration the fact that in the abovementioned cases conditions for holding trials were not ful illed, the respective trial panels closed the hearings, but failed to apply p ro c e d u ra l p rov i s i o n s p e r t a i n i n g t o sanctions against witnesses that did not respond to the invitations and not justi ied their absence. Also, many cases were noted in which w i t n e s ses d o n o t h ave t h e i r rights o r statements of oath read out before the proceeding of the trial as envisaged in the criminal procedure code. Such cases include: District Court in Prishtina, hearing held on December 16, by the trial panel comprising Hajrije Shala, presiding judge, Mejreme Memaj and three lay-judges, members, in case: 'Armed robbery and aggravated theft and robbery', all in coperpetration, from Article 255, paragraph 3, in conjunction with paragraph 1, and Article 256, paragraph 1, in conjunction with Article 23 of CCK, case number P. No. 171/11. The rights of witness F.B., invited to provide his testimony, were not read at all. At the same court, during a hearing held on September 20, by the trial panel comprising Mejdi Dehari, presiding judge, Hajrije Shala and three lay judges, members, rights of the damaged witness were not read out, as they were read in the initial hearing of case number P. No. 215/10. However, the hearing took place over three months earlier and the court is anyway obliged to read again witness' rights, as regulated in Article 356, paragraphs 1, 2 and 3 of CPCK. BIRN monitoring revealed other cases in which witnesses were not read out their rights during hearings. In District Court in Peja, the trial panel comprising Sali Berisha, presiding judge, Sylë Lokaj and three layjudges: Ramiz Baloku, Enver Dranqolli and Turhan Gjikolli), continued the interrogation of damaged/witness SH.M. to which they failed to read out his rights as a witness, thus acting in violation of Article 164, paragraph 2 of CPCK. The hearing in this case (P. No. 217/08) was held on March 30, and pertained to 'Murder in coperpetration and attempted murder in co-perpetration', from Article 146, in conjunction with Article 23; and Article 146, in conjunction with Articles 20 and 23 of CCK. 50

51 Similarly, the Municipal Court in Suhareka, in the hearing held on April 4, failed to notify the witness with his rights. The judge of this case, C. No. 192/08, was Shaban Zeqiri and the case pertained to 'Claim-suit for debt servicing'. As an exception to this rule, in EULEX-led trials, witnesses are always initially informed of their rights and their statements under oath are always administered. C a s e s w h e n w i t n e s s e s a m e n d t h e i r statements given to the police and prosecutor are numerous, and this entirely compromises the case raised by prosecutors. In most such cases, this is justi ied with the fact that long periods have passed since their initial statements with the police and prosecutor, which the witnesses use to claim that they do not recall in reality the turn of events. Concretely, such occurrences were noted in the following cases: Municipal Court in Ferizaj, hearing held on November 24, case P. No. 1060/11, on 'Severe body injury', from Article 154, paragraph 1, in conjunction with Article 34 of CCK, and criminal offence 'Assault against of icial persons in conducting of icial duties', from Article 317, paragraph 2, in conjunction with paragraph 1 and Article 23 of CCK. Municipal Court in Ferizaj, hearing held on November 1, case number P. No. 1137/10, pertaining to Aggravated theft' from Article 253, paragraph 1 of CCK. Municipal Court in Shtërpce, hearing held on November 11,, case number C. No. 16/09, on 'Compensation of damage'; Municipal Court in Shtërpce, hearing held on October 25, case number C. nr. 47/04, on 'Contract ful ilment'. Another irregularity identi ied by our monitoring is the violation of procedures regarding witness examination. In a large number of monitored court hearings, witnesses are examined in the presence of other w itnesses wa iting to g ive t heir testimony. Such cases include: District Court in Prizren, hearing held on April 27,. Case: 'Murder' from Article 146 of CCK; 'Attempted murder' from article 146, in conjunction with Article 20 of CCK, and 'Unauthorised ownership, control, possession and use of weapons' from Article 328 of CCK, case number P. No. 37/11, conducted by presiding judge Xhevdet Elshani. While a witness was examined, present in the courtroom was witness M.SH. and the judjge was only made aware of this occurrence when he called the following witness to the stand, thinking that the latter was waiting outside. In fact, he had joined the hearing during the break and was unnoticed by the trial panel, because of the large audience following the hearing. 51

52 Municipal Court in Prizren, hearing held on March 10,. Case: 'Theft', from Article 252, paragraph 1 of CCK, P. No. 54/08, conducted by Judge Skender Çoçaj. While the KEK representative was giving his statement, the other two witnesses did not leave the room and the judge only remembered that this represents a violation after the former inished his statement, and ordered the witnesses to wait for their turn in the corridor. Initially, the trial panel is procedurally obliged to inform all witnesses on their rights and obligations during hearings. Also, another obligation of the trial panel is to issue ines to all witnesses that fail to appropriately respond to court summons. BIRN monitoring revealed numerous situations in which the trial panel fails to adhere to such procedural requirements. Moreover, the trial panel shall not examine witnesses in the presence of other witnesses waiting to give their testimonies for the given case. On the other hand, the Assembly of Kosovo should adopt as soon as possible the Law on Witness Protection, which would ensure a higher level of witness cooperation. 6. Interpretation during hearings The applicable legislation governing both criminal and civil matters guarantees parties a n d o t h e r p a r t i c i p a n t s f r o m o t h e r nationalities involved with the procedure the use of their native language in judicial proceedings. Field monitoring revealed that there are dif iculties in ensuring the application of this right. There are many cases when hearings are conducted in a number of languages, especially EULEX-led hearings which represent the basis for most concern. BIRN has identi ied a number of cases when EULEX interpreters had dif iculties with adequate interpretation of words, thus c h a n g i n g t h e i n i t i a l m e a n i n g w h i l e translating various judicial iles. O n e s u c h o c c u r r e n c e h a p p e n e d o n September 6, at the District Court in Prishtina. Case: 'War crimes against civilian population and provision of assistance to criminal offenders', case number P. No. 411/10, conducted by trial panel comprising Horst Poetel, presiding judge, Tore Tomasson and Rafet Haxhaj, members; while the prosecution was represented by the Special Prosecutor Maurizio Salustro. Prior to the examination, the defence expressed its remarks regarding the reason for prolonging pre-trial detention, in which the court had stated that 'testimonies of witnesses and of the collaborating witness and other material evidence indicates that the defendant committed the criminal offence of war crimes', claiming that by issuing this statement the trial panel is prejudicing the case outcome. The presiding judge stated that t h e E n g l i s h ve r s i o n h o l d s a d i ff e re n t statement, which says 'there is reasonable doubt that the defendant has committed the criminal offence of war crimes.' 52

53 This proves that EULEX interpreters failed to adequately translate the text, thus directly impacting the conduct of court proceedings. Similar translation problems in the judiciary were also faced in the higher pro ile trials, such as the Bllaca case. In the hearing there were numerous remarks by the defence counsel and the prosecutor on the poor interpretation. Remarks pertained to incomplete or partial interpretation, inadequate interpretation, textual translation without contextual adjustments, etc. Such interpretation de iciencies cause m isunderstandings a m ong p a rties in procedure and adversely affect the credibility of judicial proceedings. One such case occurred in the hearing held on October 18, at the District Court in Prishtina, on 'Organised crime, human traf icking, illegal medical activity, and misuse of of icial post or authorisations, all in co-perpetration', from Article 274, paragraphs 1 and 3, Article 139, paragraph 1, Article 221, paragraph 1 and Article 339, paragraph 3, all in conjunction with Article 23 of CCK; cases number P. No. 309/10; P Nr. 340/12. Trial panel: Arkadiusz Sedek, presiding judge, Dean Pineles and H a m d i I b r a h i m i, m e m b e r s. E U L E X Prosecutor: Jonathan Ratel. In the hearing there were numerous remarks on the interpretation by EULEX's interpreter, prompting the prosecutor to state during the break that he will raise this matter in higher EULEX instances. Another similar case occurred at the District Court in Prishtina, in a hearing held on April 17,. Case: 'War crimes against civilian population and provision of assistance for criminal offenders', case number P. No. 411/10, conducted by trial panel comprising Horst Prote, president, Tore Thommason and R a f e t H a x h a j, m e m b e r s, w h i l e t h e prosecution was represented by the Special Prosecutor Maurizio Salustro. The judicial review continued with the examination of the main witness Nazim Bllaca, a collaborating witness. During the examination by the defence counsel, the latter opposed the interpreter on the manner he was interpreting, stating that he was hindering the defence counsellor in his examination. However, the interpreter said that he needed time to interpret what the parties were saying. Anyway, the presiding judge replaced the interpreter in order to avoid any further polemics. There are also cases when the judge, attorney, parties and even registrars take the role of an interpreter. One such case occurred in the District Court in Peja, in a hearing held on J u n e 2 9, C a s e : ' U n a u t h o r i s e d ownership, control, possession or use of weapons', from Article 328 of CCK. This case, K. No. 165/11, was presided by judge Sali B e r i s h a, w h i l e t h e p r o s e c u t i o n w a s represented by Xhemajlije Mustafa. The judge invited the accused to present his personal data, but he could not understand the language of proceedings. Interpretation was provided by his grandfather Bajram Bicaj, aided by the defence counsel and p ro s e c u t o r. T h e j u d g e s t a t e d t h a t a n interpreter should be invited, whereas the defence counsel and public prosecutor c l a i m e d t h a t t h e y c a n c o n c l u d e t h e proceedings without an interpreter. 53

54 The public prosecutor read the indictment in Serbo-Croatian, although she had compiled it in Albanian. Later, when interpretation dif iculties reappeared, the presiding judge invited the court registrar to provide interpretation for the remainder of the hearing. Another such case at the Municipal Court in Peja occurred in the hearing held on June 16, on case P. No. 396/08 pertaining to 'Tax evasion', from Article 249, paragraph 1, conducted by judge Sami Sharraxhiu, while the public prosecution was represented by Sahide Gashi. When the interpreter left the courtroom in order to make some copies of certain documents (payment invoices), the trial proceeded without an interpreter, with the Judge himself acting as an interpreter, often aided by the prosecutor. The judge was also careful to provide interpretation to the audience. The defendant was of Serbian ethnicity and could not understand the language of proceedings. Conclusions Although interpretation matters were 6 5 addressed last year, they continue to negatively re lect on the operation of courts, and comprise a violation of fundamental human rights for a fair trial on one's own language. This exercise continues to in luence on the quality of judicial review and on the tendency of communities that do not speak Albanian not to trust Kosovo's justice system. Ta k i n g i n to a c c o u n t t h e c u rre n t c i rc - umstances, it is the task of KJC to build trust a m o n g c o m m u n i t i e s t h a t d o n o t h ave Albanian as their mother tongue by providing t h e m a d e q u a t e a n d p r o f e s s i o n a l interpretation in their languages. 7. Trial minutes Through its court monitoring exercise, BIRN has also identi ied cases in which not all procedural activities are noted in the minutes. The Criminal Procedure Code of Kosovo envisages that the minutes of judicial review shall be compiled in written, and stipulates its contents. In the previous year's report, BIRN had identi ied a plethora of occasions in which minutes do not represent a realistic overview of activities performed during hearings. Not all procedural activities were included in such 66 trial minutes. Although the situation has slightly improved, there are still certain de iciencies by judges/trial panels in including all procedural activities performed during a court hearing. Judges, in most cases, summarise all hearing activities Courts Monitoring Report April 2010 February. BIRN. Prishtina. September. Ibid. 54

55 In such judicial reviews, BIRN identi ied cases when the claim-suit, response to the claimsuit, or other procedural rights determined by procedural provisions were not read out, whereas the minutes stated the contrary. This resulted in the lack of clarity among the audience present in the hearing or the lack of information among parties on their legal rights and obligations. According to the judges, it is important for p a r t i e s i n p r o c e d u r e ( p l a i n t i ff a n d respondent) to understand the claim-suit and response to such claim-suit, as this is explicitly stipulated in Article 403, par. I of the LCP. Bardh Maksuti, judge in the Municipal Court of Gjakova, and Ramë Hysni, judge from the Municipal Court in Mitrovica, stated that due to this reason, namely due to the fact that that both the plaintiff and respondent have understood the claim-suit allegations, it has become a practice to conclude for the trial minutes that the claim-suit has been read. Judges further stated that the claim-suit is only read if the plaintiff is absent from the hearing. Judge Ramë Hyseni, from the Municipal Court in Mitrovica, stated that claim-suit reading in h e a r i n g s a l s o o c c u r s f o r r e a s o n s o f transparency towards other attendees present. However, an issue of signi icance for judges is for the parties to understand the allegations of the claim-suit and to respond to 67 them. Such a custom among judges that hesitate to be punctual in compiling minutes not only sheds a bad light on Kosovo courts and justice system, but also represents a practical problem in instances when cases and judgments are appealed and when the higher instance court is expected to provide its opinion on the given case, as the latter court is deprived of all information related to the case. Contrary to local judges, EULEX judges always include all details regarding the proceedings, statements and other actions undertaken during the judicial review in the respective minutes. Conclusions Given that last year's recommendation was not respected by all judges/trial panels, BIRN considers that it imperative for judges to re s p e c t p ro c e d u ra l p rov i s i o n s w h e n compiling minutes of judicial review. KJC should apply sanctions against all judges that neglect this important segment of judicial review documentation. This would result in respecting the principle of public review during hearings, would improve trust in courts and would facilitate the operations of higher instance courts that deal with appeals. 67. Roundtable discussion on the indings of the monitoring activity March-December. BIRN. 25 June 2012, Prishtina. 55

56 8. Execution of cases in our courts Kosovo courts (at all levels) have an average ef iciency of 84.5% in case execution, and this wa s a c h i eve d while fa c i n g n u m e ro u s objective and subjective de iciencies. For three consecutive years, BIRN has underlined that our courts continue to face a large number of unexecuted cases, although such cases had to undergo various phases in various court instances in order to arrive to the execution phase. In 2010, our courts had inherited 89, 201 unexecuted cases from 2009, while an additional 26, 921 cases accrued in Only 9, 973 cases were executed in Year found our courts with no less than 106, 149 unexecuted cases, inherited from previous years. In, according to KJC reports, there were 106, 149 cases inherited from 2010, whereas 19, 172 cases were executed. After USAID's initiative, in cooperation with KJC, through the SEAD Program (Systems for Enforcing Agreements and Decisions) for the execution and registration of executions, the n u m b e r o f u n e xe c u t e d c a s e s w i l l b e diminished and progress may be expected in this sphere. From the overall number of unexecuted cases prevalent in, courts have executed 19, 172 cases, of which 2, 462 with court d e c i s i o n s a n d 8, w i t h a u t h e n t i c d o c u m e n t s, while t h e re m a i n d e r a re executions by the District Commercial Court in Prishtina and criminal executions by municipal courts. The greatest creditors with authentic documents remain Post and Telecommunications of Kosovo and the Kosovo Energy Corporation. A total of 72, 615 cases with execution documents were inherited from 2010, while this number was further increased by 13, 687 new cases in. In the reporting period only 8, 772 cases with execution documents were executed. In conclusion, there are an additional 77, 530 cases with authentic documents, which increases the number by 4, 915 cases or 6.7%. One of the courts that continues to face dif iculties in executing its decisions is the District Commercial Court in Prishtina, where parties complain for lack of ef iciency in executing court decisions. 56

57 Judges of this court claim that this delay occurs because of a missing agreement with Kosovo commercial banks, as the latter do not take into consideration or act based on court's execution decisions. Other courts justify their large number of unexecuted cases with the small number of judges appointed to work in such cases, although Kosovo's judiciary has undergone the judge appointment/reappointment process. Also, another justi ication mentioned is the lack of support staff for execution judges. At the same time, one of the problems for case execution is the frequent change of debtor addresses, lack of an adequate address system, lack of vehicles for ield trips and the economic state of debtors. The Municipal Court in Prishtina continues to lead the list (in ) of courts with the highest number of unexecuted cases in both ields, with a total of 33, 489 such cases. It is followed by the Municipal Courts in Peja and Prizren with 9, 083 respectively 8, 760 unexecuted cases. On the other hand, there are also a number of unexecuted criminal cases. In Kosovo courts there are in total 8, 906 unexecuted criminal cases. This large number of unexecuted criminal sentences proves the lack of ef iciency in the execution of criminal sentences. Reasons for failure to execute criminal cases are similar with those of civil nature. However, much remains to be done in order to bring the number of execution cases to an acceptable level for all courts. Conclusions: T h e K J C a n d U S A I D p r o g r a m f o r t h e registration and reduction of execution cases in luenced the decrease of the growing trend of the number of unexecuted cases in. Hence, BIRN considers that continuous support from USAID is necessary to reduce the large number of unexecuted cases. In addition to USAID's SEAD program, which somewhat mitigated the severe situation and the large number of unexecuted cases, KJC contributed to the improvement of this situation by employing a number of execution of icers. 57

58 TECHNICAL FINDINGS 1. Inef iciency of police in administering arrest warrants The inef iciency of police in administering arrest warrants continues to follow the Kosovo judiciary. During its monitoring, BIRN identi ied cases in which court hearings were not held because of the failure of parties to appear in the courtroom, or, better said, because the police did not implement the order to bring the defendant to the court, which is issued by the court. Although courts issue arrest warrants in conformity with the criminal procedure code, based on which the defendant should be f o r c e f u l l y b r o u g h t t o t h e c o u r t, t h e appearance of defendants ordered to take part in court hearings continues to represent a problem, because of police's failure to implement the said order. In its monitoring, BIRN identi ied cases when court hearings were held in the absence of defendants, which represents a clear violation of judicial proceedings by the presiding judge. In this concrete case, the presiding judge should have not continued the trial, and should have requested the reasons for the failure to implement the order by the police. Also, the police should clarify the reasons for not administering defendants to trials. paragraph 1 of CCK, case number P. No. 65/10, hearing held on November 22, Similarly, at the Municipal Court in Peja, in the criminal proceedings on 'Mistreatment in exercising duties and grievous bodily harm', from Article 164, paragraph 1 and Article 154, paragraph 1, case number 558/08, hearing held on May 13, 2010 the hearing was not conducted at all, as the defendant did not appear in the hearing, because he had re c e ive d t h e i nv i t a t i o n t o o l a t e. T h e defendant was a policeman and the court had serviced the invitation at the Vitomirica police station, as the invitation was submitted to the Peja police station, but the latter had concluded that the defendant works at the Vitomirica police station. The police station in Vitomirica returned the invitation, claiming that the policeman works at the police station in Peja. This clearly indicates the seriousness of police of icers in addressing court summons. A similar setting occurred at the Municipal Court in Gjakova in criminal matter 'Grievous bodily harm', from Article 154 of CCK, P. No. 533/07, in the hearing held on October 27, 2010 Given that the defendant failed to appear in the courtroom and taking into account the claims of the judge that the police was ordered to bring him to the trial, the court concluded that prerequisites for the conduct of the hearing were not met, hence the trial was postponed for November 11, 2010 at 11:45. BIRN has also monitored hearings which were not held at all, because of the police inef iciency in forceful administration of defendants to courts. Such cases were noted at the Municipal Court in Deçan, case: ' G r i e vo u s b o d i ly h a r m', A r t i c l e 1 5 4, 58

59 According to the representatives of the Kosovo Police, this occurs due to the issues with changing places of residence and the lack of data on adequate persons. Baki Kelani, Spokesperson in the Kosovo Police, said that the police faces with cases two persons have the same name and surname, dual street names, lack of completed information in the court order and summon, issues of PTK in delivering court order in the Police, etc, which puts the Police in a dif icult position to deliber the adequate person in court within the 68 envisaged time. During this reporting period, BIRN identi ied the same problems, ranging from change of residence to address issues. Moreover, another constant problem is the communication between police and courts. The police very seldom inform the court on its inability to administer defendants to the court. Conclusions Failure of the police to implement court orders and inform the court may be deemed failure to perform police responsibilities by police of icers, and the court should inform higher police echelons on such failures. On the other hand, judges should not conduct judicial review in absence of the defendants, subject to the procedure not being separate for defendants in absence. 2. Problems related with the transport of detainees to trials Prisons and detention centres continue to face a lack of transport vehicles for detainees even in. They are obliged to transport to trials until they are served with a inal judgment. The Dubrava Prison, with over 900 prisoners, has at its disposal only four vehicles for prisoner transport. Other detention centres face even worse situations than Dubrava, with only one vehicle available per centre. For this reason, they often have to borrow vehicles from the former. The situation remains unchanged since2010. Lack of vehicles for the transportation of prisoners and detainees directly impacts on postponements and procrastination of judicial review. 3. Lack of use of electronic equipment in courts Pursuant to Article 348, paragraph 5 of CCK, the presiding judge shall decide on the manner of judicial review recording. The second paragraph of the said article explicitly stipulates that the entire court review may be audio-video recorded. Although the law envisages this technological facility, which would serve to overcome problems related to the records of data from trials, not all courts are equipped with the 68. Roundtable discussion on the indings of the monitoring activity March-December. BIRN. 25 June 2012, Prishtina.. 59

60 appliances that would make possible such a form of archiving and documentation of judicial review processes. All District Courts have courtrooms equipped w ith a u dio-video recording systems; however, they are very rarely used. In comparison to last year, when only 0.9% of all court hearings were audio-video recorded (20 of 2, 147 monitored hearings), in the number of such hearings was noted to have increased to 52 (or 2.71%) of the 1,920 monitored court hearings. Number of monitored hearings with/without audio/video recording BIRN has addressed the same problem last year; however, the responsible institution administering courts has not taken any measures that would functionalise this mechanism. Even though conduct of hearings in of ices may be heard as a justi ication for n o t u s i n g t h e a u d i o - v i d e o re c o rd i n g equipment, we consider that there are no valid reasons for not utilising such equipment whenever made available and whenever possible. Conclusions Each year BIRN continues to address the same problem the situation of audio recording of court hearings; however, the situation does not seem to change. Audio recording of court hearings is very important for the veri ication of procedural actions during public review, and could be used to store exact and correct trial data and statements of parties, witnesses, judges and other material evidence. 60

61 Trial panel members/judges should utilise audio recording more frequently, especially in hearings that bear much greater signi icance. Although electronic equipment exists in a number of courtrooms, they are not utilised during hearings. 4. Use of mobile phones in court hearings A l t h o u g h t h e u s e o f m o b i l e p h o n e s i s forbidden within court facilities, this rule continues to be violated in. Use of mobile phones during hearings continues with the same intensity as last year. While last year the trial panels or case judges used the telephone in 3.9% of all monitored hearings, during this year, mobile phones were used by them in 2.29% of the monitored hearings, while prosecutors used them in 2.5% and attorneys in 3.34% of all hearings. In the monitoring of 1920 court hearings, BIRN identi ied 201 hearings in which telephones were used by the trial panel, prosecutor or attorney. It is the obligation of the presiding judge to ensure adequate proceedings in the hearing, respectively not to allow the use of telephones in the hearings, which is a prerequisite for the provision of an appropriate and professional court hearing. This percentage shows a slight improvement regarding this violation. However, we consider that the percentage could be further diminished, as it gives the observers a clear opinion on the conduct of the hearing. 61

62 Number of monitored hearings where mobile phones were (not) used 62

63 Contrary to the BIRN recommendations from previous years, which stated that presiding judges/case judges should ensure that hearings are not disrupted by the use of telephones and should a phone ring in the courtroom their respective users should be cautioned, this phenomenon continues to be present across Kosovo courts. Conclusions The presiding judge/case judge should issue ines and sanction all those using telephones during hearings, which has, in reality, never occurred. Moreover, even judges themselves continue to utilise telephones during hearings. 5. Failure to wear uniforms by judges, prosecutors and attorneys The dress code during judicial review is explicitly regulated by relevant legal provisions. In comparison to last year, the wear of uniforms has increased by around 20%. While in the previous reporting period uniforms were not worn in 52.2% of 2, 147 monitored hearings, during this year judges, prosecutors and attorneys have started to adhere to the correct dress code more frequently. From 1, 920 monitored hearings, uniforms were not worn by any of the parties in 35.73% of cases. 63

64 Number of monitored hearings were court uniforms were (not) worn Although the phenomenon of not wearing uniforms has shown a decrease year after year, BIRN monitoring revealed numerous occasions in which prosecutors, attorneys and the trial panel consider the wear of uniform redundant, thus acting in violation of the circular issued by the President of the Supreme Court of Kosovo two years ago. In this circular the President requested that uniforms be worn by prosecutors and attorneys in all court hearings. J u d g e s p r e s e n t e d c o m p l a i n t s i n t h e roundtable and discussion on the indings of the judiciary monitoring exercise, organized by BIRN on June 25, 2012, on the lack of uniforms and blamed KJC for not providing them. KJC representatives attending the roundtable, spokesperson Aishe Qorraj- Berisha, agreed that judges cannot be blamed for this. A call to bid has been published, and it is still open and as of 2013, all judges shall be forced to wear them said Aishe Qorraj Berisha. 64

65 Failure to adhere to such Administrative Instructions (such as the Circular on the wear of uniforms) is considered a breach of the Code of Ethics and Professional Conduct by 69 judges and prosecutors. Adherence to the correct dress code by other parties in judicial proceedings would not only yield in adherence to the Supreme Court instructions, but also give the entire judicial p r o c e s s a m o r e f o r m a l a n d o f i c i a l characteristic. Parties and participants in the procedure would show higher considerations and respect for the judicial process and courts themselves. BIRN continues to consider that the wearing of uniforms by all judges, prosecutors and attorneys attending court hearings is necessary. Presiding judges/case judges should ensure compliance with this rule by prosecutors and attorneys throughout the judicial review process. MISCELLANEOUS: Court transition Adoption of the Law on Courts by the Assembly of Kosovo is expected to change the s t r u c t u r a l r e g u l a t i o n o f c o u r t s a n d prosecutors' of ices. According to GAP Institute, the draft-law on courts was part of 7 0 t h e l e g i s l a t ive s t ra tegy s i n c e According to them, 'this law was one of the requirements of the two latest European 71 Commission Progress Reports on Kosovo'. The current system applied in Kosovo includes the Supreme Court, district courts, municipal courts and courts of lower i n s t a n c e s ( m i n o r o ff e n c e s c o u r t s ). Appointments and reappointments of judges and prosecutors were allocated as per the said court hierarchy. Pursuant to the Law on Courts, the respective Implementation Plan for this law issued by the Kosovo Judicial Council, and the Judicial Council administrative instruction on the allocation of judges and cases in the new 7 2 regulative system, the Kosovo Judicial Council will head the transition to the new court organisation system, applicable as of January From 2013 onwards, all minor offences courts, municipal courts and district courts shall be transformed into one sole court the Basic court. There will be only one Appeal Court, with its seat in Prishtina, and one 73 Supreme Court Code of Ethics and Professional Behaviour for Judges, Article 10, Paragraph 2.C The Law on Courts is approved, but it shall enter into force in GAP Monitor. GAP Institute. 2 Mars 2010, < Ibid. Law on Courts. Kosovo Assembly. < Implementation Plan of the Law on Courts. Kosovo Judicial Council. < Implementimit-te-Ligjit-per-Gjykata---Shqip_ pdf> Law on Courts, Article 8. Kosovo Assembly. 65

66 Even though transfer, judge and caseload distribution strategies are already adopted, the irst impression is that the judiciary will face a signi icant challenge in the years to come. Challenges expected to accompany this court transition include technical matters, such as lack of court facilities and registries. These then follow with more substantial matters, such as the establishment of new branches and allocation and distribution of judges in new departments and branches. The Republic of Kosovo is home to a total of 58 court facilities, currently held by minoroffence, municipal and district courts. Seven of these facilities will be transformed into basic courts, whereas the rest are expected to serve respective branches and departments. One Supreme Court, one Court of Appeals and seven Basic Courts, with their branches and departments, shall comprise the new judicial system of the Republic of Kosovo from 2013 onwards, meaning that all judges and cases should be distributed among this structure. A supervisory committee consisting of professional judges and a working group established by this committee shall bear the burden of this transition. Basic courts shall comprise departments on severe crimes, g e n e r a l m a t t e r s, j u v e n i l e m a t t e r s, commercial and administrative matters; and branches in certain municipalities in its vicinity. Based on analyses and research conducted by BIRN monitors, key problems are expected regarding the establishment of two new basic courts in Ferizaj and Gjakova, which lack not only adequate facilities but also judges who will have to treat severe crimes, which they never addressed in their past experience. These courts will have their branches in Shtërpce and Kaçanik, as well as in Malishevë and Rahovec. A similar situation is expected in Prishtina, the basic court of which will also include a d e p a r t m e n t f o r c o m m e r c i a l a n d administrative matters. Taking into consideration the establishment of new branches and the new competencies, there will be an inherent need for new staff to a s s i s t t h e c o u r t s i n d i s c h a rging s u c h competencies. The working group established by the supervisory committee has planned to allocate and transfer all cases to courts of all levels by November 2012, and to conclude the distribution of judges by December However, this group has not assessed whether the judiciary will have to acquire new administrative staff, in order to ful il the needs of its new departments and branches. Although the process of appointment and reappointment of judges has provided a good basis for this process, something which was also noted in Kosovo's EC Progress Report, there are grounds for scepticism regarding the reappearance of similar positive notes in the 2013 EC Progress Report. 66

67 Smoking in courts continues to remain a concern Smoking in public institutions is prohibited 74 by the Law on Tobacco. This rule seems to be inapplicable for most of icials employed in Kosovo courts. Monitoring of over two thousand court hearings by BIRN monitors revealed that j u d g e s, a d m i n i s t r a t i v e c o u r t s t a ff, prosecutors, attorneys and other parties that visit the court for various reasons, smoke within the court premises, especially during the breaks between hearings. Monitors were witnesses of cases when judges, minute-keepers, prosecutors and attorneys smoked in judges' of ices. Other smoking occurred in registrars' of ices or court corridors, regardless of the cautioning by court security. In a number of courts, especially model courts, there are smoke and ire alarms which were often activated in the past. In order to continue smoking within the premises, court staff has made sure to cover the said ire and smoke alarms with plastic caps and paper, in order to avoid their activation. Good examples were noted in some courts in which the respective presidents thought of the smoking clients and provided them with designated smoking facilities. Punitive orders The Provisional Criminal Procedure Code of Kosovo has envisaged the procedure and cases in which criminal offenders can be subjected to punitive orders. Based on the relevant legal provisions, persons that have committed criminal offences punishable by up to three years imprisonment, and persons that have committed criminal offences punishable in ines, may be subject to the issuance of punitive orders by the court, meaning that the court is able to sanction these individuals without having to conduct a regular criminal procedure, in the events when the accused party agrees to such a proposal. BIRN monitoring in municipal courts of the Republic of Kosovo revealed that procedures for the issuance of such punitive orders are not always complied with by all courts. In the monitoring conducted in municipal courts, monitors noted cases when judicial review on a given matter was initiated, and because of the absence of the accused or because of other reasons rendering the conduct of the hearing impossible, the municipal prosecutor would propose to the court to issue a punitive order for the given case, although in such cases judicial review should continue Law on Tobacco. Kosovo Assembly. Criminal Procedure Code of Kosovo, article

68 Based on court monitoring statistics, the most frequent criminal offences for which punitive orders are issued include: theft of electricity, forest theft, endangerment of public traf ic and light bodily harm emanating from ights. After the issuance of such measures, the defendant may appeal the court decision within eight days, otherwise the decision becomes inal. After the expiry of this period, the case is considered concluded and appeals cannot be iled. However, a number of cases were identi ied whereby courts fail to respect the appeal period and conclude the case upon issuance of the punitive order. In the event of an appeal of the punitive order, the case is allocated a new case number, thus considering that the initial case is closed which should not be the case. Such practices were noted in municipal courts of Malisheva, Rahovec, Deçan and Theranda. In these courts, judges note that the case is concluded at the moment when they issue the punitive order, while in case of an appeal by the defendant the case is given a new number. In such an event, one case is registered under two numbers, and is thus re lected twice in statistics of the overall number of court cases. Such practices make it easier for the judges to complete their monthly norms, by addressing cases which they in fact did not manage to conclude, as proper judicial proceedings have to be conducted on the same case at later stages. In contrast, there are courts that do not consider the case concluded at the moment of the issuance of punitive orders, and in the event they are appealed they undergo adequate criminal procedure. Such cases were noted in the municipal courts of Prishtina, Prizren, Gjilan, Gjakova and most other courts, which claimed that they register such cases as concluded only if they are not appealed. Only in the last half of, three judges of the Municipal Court in Malisheva issued around 220 punitive orders. All said cases are registered as concluded, although there were a number of appeals on such punitive orders. Accord i n g to j u d g e s a n d p ro s e c u tors members of the panel in the BIRN roundtable and discussion on the indings of the judicial monitoring exercise, two numbers should not be issued to cases addressed through punitive orders when appealed. Fillim Skoro, Prizren District Court Judge, stated that in such cases KJC should notify courts, as this is used by various judges for purposes of completing their norm. Shaqir Zika from the Municipal Court in Rahovec, and Nuredin Abazi, from the Court in Theranda, stated that this was a wrong practice applied by their courts, and that when they assumed positions of Court Presidents, cases with punitive measures are no longer given a new number. According to the former, this practice is prohibited in the Municipal Court in Rahovec since 2010, and according to the latter, since mid, such punitive measure cases in the Municipal Court in Theranda are not issued a new 76 number. 76. Roundtable discussion on the indings of the monitoring activity March-December. BIRN. 25 June 2012, Prishtina. 68

69 However, BIRN monitoring con irms that in the Municipal Court in Suhareka, cases addressed through punitive measures were 77 issued new numbers throughout. Issuance of punitive orders is being exercised increasingly by almost all judges of municipal courts throughout Kosovo. There are many old cases for which there is suf icient evidence that the defendant has committed the criminal offence, which can be concluded through this procedure. However, the non-uniformed manner of addressing these cases after the issuance of the punitive order and the subsequent appeal remains an unresolved issue for Kosovo's judicial system RECOMMENDATIONS: Recommendations for the Assembly of Kosovo: Since the publication of the recommendations from BIRN's 2010 Court Monitoring Report, the Assembly of Kosovo has adopted the Law on Witness Protection. The following recommendation from that report continues to remain unful illed: - The Assembly Committee on Legislation and Judiciary should rigorously monitor the implementation of legislation related to the judiciary; In line with the indings of the Court Monitoring Report, the Assembly of Kosovo is recommended the following: - The Assembly Committee on Legislation and Judiciary should strive to ensure a more active civil society participation in the review and adoption of legislation regarding the judiciary; Recommendations for the Government of Kosovo: Government of Kosovo is often accused of not providing the necessary conditions for the functioning of courts and prosecutors of ices. One such typical case that has caused great dissatisfaction was when the Government of Kosovo allowed for the unspent budget a l l o c a t i o n s f o r w a g e s i n t h e K o s o v o Prosecutor's Of ice to be used for retroactive increase of prosecutors' salaries. 77. In the Municipal Court in Suharekë, cases with a punitive order in were given new numbers after the parties had iled appeals. The case with the punitive order initially had the number P.nr:410/10, and after the party's objection, it was given a new number P.nr:725/11. The objection was made on The criminal case of Endangering Public Traf ic as per Article 297 paragraph 3 of the CCK, initially had the number P.nr:369/10, and after the party's objection, it was given a new number P.nr:623/11. The objection was made on Another similar case had the number P.nr:127/10, but objection it was given the new number P.nr:484/11. The objection was made on

70 This was severely criticized by the Kosovo public and civil society, and subsequently resulted in the retraction of the said decision, as it was considered to be advantageous for one segment of the justice sector. To date, means paid irregularly as additional wages for prosecutors are not returned to the Kosovo budget. Another problem, considered an obligation of the Government of Kosovo, is the failure to ensure adequate space for the functioning of all courts and prosecutors' of ices in Kosovo. In addition to the problems faced by the Municipal and District Courts in Mitrovica, a large number of model courts have an insuf icient number of courtrooms and other facilities required for normal functioning. Recommendations which remain unful illed from last year: In addition to recommendations that remain unaddressed from last year, the list is supplemented by additional reco-mmend a t i o n s, t h u s a d d i n g to t h e t a s ks a n d obligations of the Government of Kosovo related to the justice sector: - The Government of Kosovo should allocate funds for constructing modern facilities for the country's courts; - The Government of Kosovo should process the law on judges' retirement pensions. Recommendations for the Kosovo Judicial Council: Comparing recommendations for the KJC in the 2010 report, a small improvement is noticeable, particularly in technical aspects, as presented in the table below: - T h e G o v e r n m e n t o f K o s o v o s h o u l d guarantee transparency in the compilation of j u s t i c e s e c t o r l e g i s l a t i o n t h r o u g h consultation procedures; - The Government of Kosovo should ensure suf icient budget to meet KJC's needs; - The Government of Kosovo should provide suf icient means to support the witness protection program; 70