THE NEVER-ENDING STORY OF KOSOVO S JUDICIAL SYSTEM:

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1 1 Policy Brief THE NEVER-ENDING STORY OF KOSOVO S JUDICIAL SYSTEM: Fixing the Unfixable! Author Albana Merja Research Fellow, Group for Legal and Political Studies ABOUT GLPS Group for Legal and Political Studies is an independent, non-partisan and non-profit public policy organization based in Prishtina, Kosovo. Our mission is to conduct credible policy research in the fields of politics, law and economics and to push forward policy solutions that address the failures and/or tackle the problems in the said policy fields This policy brief has been prepared in the framework of the TRAIN Programme 2017 (Think Tanks Providing Research and Advice through Interaction and Networking), which is supported by the German Federal Foreign Office (Stability Pact for South East Europe) and implemented by the German Council on Foreign Relations (DGAP). INTRODUCTION In January 2013 a new judicial and prosecutorial system entered into force in Kosovo. This marked a departure from the pre-existing organization and procedures in an attempt to modernize the courts/prosecutor offices, and increase their efficiency and independence. Still, after more than four years of implementation, the public s satisfaction with the working of the courts/prosecutor offices remains at a minimum. Different reports published by international and local organisations have highlighted significant corruption risks within the judiciary system. 1 The last survey of the Performance Index for the Rule of Law Institutions (ROLPIK), realized by Group for Legal and Political Studies (GLPS) in June 2017, showed that, on a scale from 1 to 5, the Judiciary and the Public Prosecutor received a 2.66 score. The image gets even worse when asking about their effectiveness in the fight against corruption (only 3.6% and 4.7% of the interviewed mention both institutions as effective, respectively) and independence, where courts are 1 Group for Legal and Political Studies RoLPIK, June UNDP Kosovo, Public Pulse XI, May 2016; Kosovo Security Barometer by KCSS; Freedom House, Nations in Transit 2016 etc.

2 2 characterised as politically influenced by more than 75% of the respondents. 2 The new structural reform of the judiciary was passed through a package of laws, namely the Law on Courts, Law on State Prosecutor, the Law on the Kosovo Judicial Council (KJC) and the Law on the Kosovo Prosecutorial Council (KPC). 3 This structural reform was followed by significant procedural changes that were stipulated within the new Criminal Code and the Criminal Procedure Code that entered into force in the same year. 4 Thus, the success of the new judiciary system depends mostly on the quality, effectiveness, and performance of both managing institutions and individual departments of court and prosecution. In particular, the transition to the new system influences the access of citizens to justice, and, if not properly implemented, can diminish the confidence in judicial institutions. Generally, assessments of the performance of the judicial system analyse three different dimensions. First, the legal norms adopted by the Government and the Assembly regarding the functioning and the independence of the system. Second, the decision-making in the judiciary, which 2 For more information see: i= For more information see: see: see: see: 4 See: includes the way courts come across facts and implement legal norms, and third, the efficiency of judiciary in resolving the cases. The aim of this policy brief is to assess the legal framework and to address the efficiency and performance of the judicial system. Moreover, it offers concrete recommendations to overcome some of the main problems, specifically the insufficient accountability of judicial officials, political influence, high backlog of cases and the review of legislative and institutional fundaments of independence and impartiality. THE NEED FOR REFORM Different reforms have taken place since the declaration of independence related to the rule of law sector in general, and the judicial system in particular. The process of reforming and strengthening this sector has been complicated and difficult and has faced many challenges. From 1999 to 2008, the rule of law sector was led by UNMIK, 5 whereas, since 2008, the Kosovo s institutions have been in charge, with the exception of some executive responsibilities exercised by EULEX. 6 The constitution and legal framework guarantee the independence of the 5 UNMIK was established in Kosovo to serve as an international civil and military presence following the adoption of UN Security Council Resolution 1244 in June The EU Joint Action of February 2008 and the Council Decision of June 2010, June 2012 and June 2014 and June 2016 provide the legal basis for the Mission. EULEX works within the framework of UN Security Council Resolution 1244.

3 3 judiciary from the executive and legislative branches. However, in practice, Kosovo is continuously struggling to achieve the independence, accountability and impartiality of the judiciary, which also suffers from the political influence. The structure of the justice system is based on Chapter VII of the Constitution, where articles 102 to 111 provide the general principles of the justice system, organization and its jurisdiction. In addition, the Constitution defines the Kosovo Judicial Council as the responsible body which ensures the independence and impartiality of the judicial system and the Kosovo Prosecutorial Council as responsible to ensure the independence of the State Prosecutor. Furthermore, the justice system is regulated by the Law No. 03/l-199 on Courts, which was adopted in 2010 and was amended and supplemented with the Law No. 04/L-171 in 2012 and Law no. 05/L-032 in The Law on Courts sets the new court system, composed by the Supreme Court and its Special Chamber, a Court of Appeals and seven Basic Courts, which is functional since January On the other hand, the Law on State Prosecutor sets the new prosecutorial system, which follows the same structure. Additionally, during May 2015, as a requirement from the European Union regarding the visa liberalization process, the Assembly approved different amendments to the justice laws (Law on KJC, the Law on KPC and the Law on State Prosecutor) concerning the appointment and reappointment process, transfer, disciplinary proceedings and dismissal of judges and prosecutors.

4 4 As depicted in the graph above, one of the main problems that can be drawn when analysing the legal framework is the frequency and the timeline through which legal changes have been taking place. Beside the fact that the laws have been amended quite often, these changes were mainly undertaken through an expedited procedure, while the institutions often justified themselves with the fact that the harmonization of these laws was scheduled as a benchmark to be met by Kosovo, either during the visa liberalization process, or the Stabilisation and Association Agreement. 7 Moreover, the Ministry of Justice has often acted precipitately during the drafting procedures and without involving most of the stakeholders that are important to this process. As a consequence, there was no proper consultation and coordination with the parties involved, and most importantly, there were no comprehensive analyses, debate and feedback received. On the other hand, since the entry into force of the package of judiciary in 2013, the Judicial and Prosecutorial Councils of Kosovo, operate as two separate institutions, independent from each other and from the executive and legislative authorities, in exercising their functions and responsibilities. Both managing institutions had undertaken a series of activities and concrete actions for the implementation of these laws, including the transition on the new organizational structure of courts and 7 For more information see oadmap.pdf prosecution offices. However, both still struggle with the processes due to a lack of proper coordination among them, leading to an overlap of actions and undertaken activities, which constitutes another problem that should be highlighted. Given the challenges that the rule of law sector in general, and the judiciary in particular are facing and due to the pressure from civil society organisation and different donor, in November 2016, the government, decided to undertake a comprehensive review of this sector. For this purpose, a working group for the Functional Review for the Rule of Law Sector was established. 8 The main aim of this process is to review the legal framework governing this sector, and to assess the cooperation and the capacities of responsible institutions. This is a good opportunity to reform the system; however, the political situation resulting from the snap election held in June 2017 has thus far stalled progress in this regard. PERFORMANCE OF THE JUDICIAL SYSTEM An effective judicial system is fundamental for the county to improve the welfare of its citizens and enhance its path towards European integration. Even though some important steps were taken during the judicial reform in 2013, the system remains fragile and it has been one of the most criticized by the Progress Reports of the European Commission and other national or 8 Governmental Decision NO.07/117, 2016

5 5 international reports. 9 Moreover, different surveys conducted (GLPS RoLPIK Survey, UNDP Public Pulse Surveys) show low satisfaction of citizens with the performance of the judiciary. 10 When analysing the efficacy of the courts and prosecutor offices, backlog reduction remains one of the critical problems facing the judiciary. According to the Judicial Council Report, at the end of 2016 the number of unresolved cases at court was 399, Even though there has been a decrease compare to 2013 (as shown below) the number of unsolved cases continues to be very high. Likewise, based on data from the Annual Report of the State Prosecutor, at the end of 2016, the State Prosecutor had a very high number of cases pending, namely 35, This number has been increasing from Thus, KJC and KPC still need to improve their efficiency in dealing with the number of unsolved cases in order to reduce as much as possible the backlog of cases within one year Backlog of cases Courts On a positive note, the court s clearance rate is increasing and now stands at 103% of the cases received within the year, up from 84% in While for the prosecutorial system, the rate is currently 126% up from 79 % in This shows that judges and prosecutors during 2016 have been resolving more cases than they received within the same year, thus making it possible to reduce the backlog Backlog of cases State Prosecutor Clerance Rate/State Prosecutor 9 9_report_kosovo.pdf 10 Group for Legal and Political Studies RoLPIK, June UNDP Kosovo, Public Pulse XI, May For more see: 12 For more see: raportetv/223

6 Clerance Rate/ Courts The efficiency of the judiciary is seriously hampered by insufficient capacity, staff and limited financial resources. Moreover, the judicial system is slow in resolving the cases. Thus, the court and prosecutorial system need to be reinforced with profiled judges and prosecutors. Further efforts are needed to finalize the selection process of judges and prosecutors, in recruitment the remaining positions, especially those reserved for minorities. CONCLUSIONS AND RECOMMENDATIONS Despite some progress that has been made in strengthening the independence and impartiality of the judiciary of Kosovo during the past years, some steps in the implementation of judicial reform have not given the expected results. It is questionable to what extent KJC and KPC have managed to profile themselves as independent and depoliticized bodies, capable of protecting judges and prosecutors from all illegal influences. In addition, the public still mistrusts the capacity of the judiciary to fall under illegal influences coming from dominant political actors, criminal groups or other social actors. Moreover some other assumptions, which concern the appropriate organization of courts, i.e. sufficient number of judges, professional and technical staff as well as financial independence of judiciary, need to be met. In order to tackle the challenges related to the functioning of the judicial system more concreate actions have to be taken. First, a comprehensive review of the legal and institutional framework should take place. Due to the numerous and frequent changes in the laws in the last years, an analysis of the overall legal and institutional framework in this field is required. Moreover, Kosovo needs to ensure the efficient implementation of legislation and pay special attention to the harmonisation of primary and secondary legislation. On the other hand, KJC and KPC should improve their capacities to analyse the effectiveness of the legal framework and to ensure legal coherency. Second, special emphasis should be placed on improving the efficiency of the judicial system. KJC and KPC should focus on the division of labour between judges, prosecutors and administrative staff, and increase their human capacities in order to deal with the backlog of cases, through the review of the case allocation procedure and the caseload for each judge and prosecutor.

7 7 Third, additional mechanisms to better support the functioning of the judicial system. Alternative dispute resolution tools (e.g. negotiation, mediation and arbitration) should be encouraged in order to reduce the workload of the courts. In addition, the financial resources for the judicial sector should increase and the capacity of judges, prosecutors and support staff should improve, in order to ensure proper functioning of the judicial system and the administration of courts. Lastly, the judiciary should have a better communication strategy and approach towards citizens. Particular attention should be paid to improving the relationship with the general public by employing a more efficient strategy for communication in order to strengthen the trust in the judiciary system.