Ex officio No. 415/2016 REPORT WITH RECOMMENDATIONS OF THE OMBUDSPERSON OF THE REPUBLIC OF KOSOVO. Related to

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1 Ex officio No. 415/2016 REPORT WITH RECOMMENDATIONS OF THE OMBUDSPERSON OF THE REPUBLIC OF KOSOVO Related to Lack of access to Court building in the Northern part of Mitrovica, namely denial of the right of access to justice To: Mr Nehat Idrizi Chair of the Kosovo Judicial Council Mr Blerim Isufaj President of the Kosovo Prosecutorial Council Mr Ali Kutllovci Acting President of the Basic Court in Mitrovica Mr Shyqyri Syla Chief prosecutor in the Basic Prosecution Office in Mitrovica Prishtina, 8 August 2016

2 PURPOSE OF REPORT The purpose of this report is to draw the attention of responsible authorities whether the Court in the Northern part of Mitrovica is providing access to justice, and whether this access is in conformity with the standard of equal treatment of citizens before Constitution. Through this report, the Ombudsperson is aiming at drawing the attention of relevant/competent institutions on the negative consequences from the non-application of Law, violation of fundamental human rights for access to justice, and to recommend a possible solution. SUMMARY OF FACTS Since February 2008, namely, immediately following the proclamation of the independence of the Republic of Kosovo, judicial system in Mitrovica has been facing essential problems in its functioning. Judicial system started its work from 1 September 1999 till 20 February Thus, for more than eight years, this system has almost ceased functioning completely, making it impossible to the citizens of the region to exercise basic rights for access to justice, a right which is guaranteed by International instruments on human rights, directly applicable in Kosovo and with Constitution of Kosovo. There has been no access for judges and local public prosecutors and the supporting staff to the Court building, located in the Northern part of Mitrovica, since after the events of February and March Ever since their official appointment, on 9 December 2008, this Court Complex has been administered by the staff of the European Union Rule of Law Mission (EULEX), which is currently comprised of judges, prosecutors and local staff (Kosovo Albanians and Kosovo Serbs), and international 2 supporting staff. Considerable damages were caused to the Court building in the Northern part of Mitrovica and there has been no access to the Court building in the north, with 2500 case files of civilian procedure and 1700 case files of criminal procedures left un-adjudicated, with no possibility to be proceeded 3 ever. 1 See OSCE report, January 2011, relating to Judicial system in Mitrovica 2 Ibid, p 3 Document from Basic Court of Mitrovica, GJA.no.209/2016,

3 Currently, Basic Court in Mitrovica is working in the building of former Municipal Court of Vushtrri. Last year, the branch in Vushtrri of BCM, was located into a new building. Lack of space for work in BCM makes working difficult, as some judges are working in one office. In addition, the entire working staff is facing difficult working conditions due to the lack of spaces. EULEX is located in the Court building in the north. Expenditures required for maintenance of the building in the north are paid, while access is not allowed. Almost, the majority of cases of prosecution which remained in a building in the North of Mitrovica have been prescribed, due to objective reasons of the inability to access the north. BPM, is now functioning in the building of the former Court building in Vushtrri, their working conditions are difficult, due to the working space. There is lack of prosecutors. After being located in a new building of the branch of Vushtrri of BCM, Prosecution office now has two (2) more offices, but they are insufficient for work. LEGAL ANALYSIS The blocking of cases in the Northern part and incomplete functioning of the judicial system in Mitrovica for more than eight years constitute a serious violation of human rights guaranteed by the European Convention on Human Rights: right for access to justice, right to liberty and right to a fair trial within a reasonable time. This report shall be focused on the right to access to justice which is a fundamental right and a source of the realisation of human rights. Right for access to justice The access to justice, not only is a right on its own, but is also a strengthening and enabling remedy in the realisation of the exercise of other rights. Right to access to Court is a fundamental human right, which means that no one shall be hindered or prohibited to address a court to seek protection of his/her rights, and prohibitions shall not be made by the Constitution, Law or whatever other act, neither shall be made by individual rulings of some court or other authority. 4 Right for access to justice is a right set forth and protected by European Convention on Human Rights and Freedoms 5 (hereinafter ECHR): and it includes fundamental human 4 A commentary of the Constitution of the Republic of Kosovo, p ECHR is part of our legal system of Constitution in conformity with Article 22 of the Constitution of Kosovo generally acceptable rules of the international law become part of the legal order, they have

4 rights, such as right to a fair trial in conformity with Article 6 of ECHR 6, Right to an effective remedy in conformity with Article 13 of ECHR. 7 Access to justice through Courts, "the right of access to a court" according to ECHR, means that courts should be accessible. Access may include the willingness of Courts with relevant jurisdiction, availability of interpretation, access to information and access to court decisions. Part of this right may also include the geographic distance of a court, thus, if applicants are made unable to attend regular legal proceedings due to geographic distance. 8 Taking into account the elements by which a right for access to justice is characterised which is required through courts, it may be established that in the case of the Court of Mitrovica, this right has been generally violated, and in particular: 1) Denial of access to information; 2) Access to court decisions, and 3) Unwillingness of the court with jurisdiction to act. International and European law on Human Rights forces countries to guarantee the right of every individual to visit and have access to courts or to receive a judicial protection relating a criminal, civil, administrative issue or even to ascertain that the right of an individual has been violated. In this way, having information that over 2500 civilian cases and over 1700 criminal cases have been left un-adjudicated, this has not only discriminated a part of the citizens of Kosovo (North Municipalities), but it also constitutes a burden, and loss of credibility and reliability on the judicial system of the Republic of Kosovo. Making it unable to exercise the right to access justice, namely the courts, constitutes a fundamental and the most important violation, as access to other rights is enabled only through it (through judicial paths to the judgment on the merits). In this case, the citizens of Mitrovica are made unable to protect themselves against violation of their rights, to rectify civilian errors/violations, to retain responsible executive power and to defend themselves in criminal proceedings. Right to a fair trial and timely resolution of disputes, right to appropriate damages, and general application of principles of efficiency and effectiveness in the provision of justice priority over the domestic law, i.e. over the law in the Republic of Kosovo, which belong to a national domestic law, and as such, these rules (principles) are not subject to the assessment of constitutionality. 6 Article 6 ECHR Right to a fair trial: Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, which shall decide not only relating to disputes relating to the rights and obligations of their civilian nature, but also on the foundation of any criminal charges. 7 Article 13 ECHR: Right to an effective remedy: Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. 8 Handbook access to justice

5 which are foreseen in the International and European law are violated at the moment when the exercise of the right of access to justice is denied. 9 Application in practice of the right for access to courts is seen in the case Golder v. United Kingdom 10, where a prisoner tried to sue the guardian for defamation according to the civilian procedure, which was not accepted by the national court, therefore ECtHR decided that the rejection of a trial of such an indictment by the court was a violation of the prisoner s right for access to court. According to par. 36 of the judgment right for access right to court is interpreted as follows: A part of the right to a trial or access to justice is the right to submit with the Court or a Tribunal, whatever type of submission, upon which, the court shall act relating to the rights and civilian obligations. Right to the court or the right to access justice, includes the right to initiate proceedings in civilian issues with the competent court. The right to access a court where ECtHR ascertained that the inability of a party s indictment to be heard effectively by a court relating to a civilian dispute has been treated by the Court also in the case of Immobiliare Saffi v. Italy, 11 where it was established that this constitutes violation of the right to access a court, and subsequently is in conflict with the principle of the democratic state and the state law. ECtHR in the case of Brandstetter v. Austria, 12 decided that the right of indicted party for equal access to a court was violated, since the appeal of the Prosecution office made with the court was not submitted to the indicted party, and subsequently the latter was not provided with possibility to respond to the claim of the appeal of the prosecution office. Right to equal access to a court is a standard of the right to a fair trial and means that each party in the judicial proceedings should be provided with reasonable environment and time to present explanations on the case, in order that it should not be seen in the eyes of others that one party was unreasonably limited against his/her opponent. 13 Access to justice according to the Constitution of the Republic of Kosovo The Constitution of the Republic of Kosovo foresees the right of access to justice, where Article sets forth that The judicial power is unique, independent, fair, apolitical and impartial and ensures equal access to the courts, based on Article the access to court is a constitutional right guaranteed. This constitutional right is documented also by 9 Handbook on European law relating to access to justice 10. Case of Golder v. THE UNITED KINGDOM (Application no. 4451/70) JUDGMENT STRASBOURG 21 February Case of, Immobiliare Saffi v. Italy, Application No /93, 28 July 1999, Judgement. 12. Case of, Brandstetter v. Austria, 28 August 1991, Judgment, Series A. No. 21, f. 28, par Case of, Bulut v. Austria, 13

6 Article 7 of the Law on Courts according to which it sets forth that Every person has the right to address the courts to protect and enforce his or her legal rights. Every person has the right to pursue legal remedies against judicial and administrative decisions that infringe on his or her rights or interests, in the manner provided by Law. The Constitution of the Republic of Kosovo sets forth that every person has the right to access courts; this access should be equal to all citizens of the Republic of Kosovo without discrimination. The access to the court in accordance with the Constitution means that every person without discrimination and in an equal manner has the right to address courts for the realisation of his/her constitutional and legal rights and obligations. The access to courts includes the right that every person may address the courts and should have not only physical access, but also access it through letters and other legal remedies. Right of access to justice in general and the right for access to courts in particular constitutes a very important element, taking into account that courts provide judicial protection of rights 14 against unlawful practices and enable the enactment and rule of law. The rule of law can be guaranteed only through a functional court and functional judicial system. Violation of the right to access a court exists in cases: a) when courts refuse to accept a party on basis of locus standi, considering that the issue of the party cannot access the court; b) when the right for access to courts is limited by the procedure or different limitations; and c) when final court decisions are not implemented by relevant institutions. 15 Denial of access to courts constitutes violation of human rights set forth under ECHR and Constitution, violation of this right makes persons unable to submit issues to the Constitutional Court, in conformity with Article 113 par. 7 of the Constitution of the Republic of Kosovo and Article 47 of the Law on Constitutional Court which sets forth that: 1.Every individual is entitled to request from the Constitutional Court legal protection when he considers that his/her individual rights and freedoms guaranteed by the Constitution are violated by a public authority. 2. The individual may submit the referral in question only after he/she has exhausted all the legal remedies provided by the law. With the inability to submit issues to the Court, persons are also made unable to exhaust legal remedies, which is a condition for the submission of an issue to the Constitutional Court, and in this way, persons are denied one more constitutional right. 14 Article 54 of the Constitution of the Republic of Kosovo; Judicial Protection of Rights: Everyone enjoys the right of judicial protection if any right guaranteed by this Constitution or by law has been violated or denied and has the right to an effective legal remedy if found that such right has been violated. 15 A commentary of the Constitution of the Republic of Kosovo, p.489

7 FINDINGS OF THE OMBUDSPERSON The Ombudsperson finds that: Lack of a judicial system, completely functional in the north of Kosovo, constitutes a great obstacle for individual s rights to access justice. In the concrete case of the citizens of the Republic of Kosovo in general, and the inhabitants of that region that fall under the territorial competence of that court, they have constantly been denied the right for access to justice, since 20 February 2008, and to date. The denial for more than eight years of the access to the Court in the north of Mitrovica constitutes a violation of: (1) The right to a fair trial, which is protected by Article 6 of the European Convention on Human Rights (ECHR) and by Article 102 par. 2 of the Constitution of the Republic of Kosovo. (2) Upon violation of the right to access a court, it also violates the right for a legal effective remedy set forth and protected by Article 13 of the European Convention on Human Rights (ECHR) and by Article 32 of the Constitution of the Republic of Kosovo. 16 (3) Right to a fair trial and within a reasonable time by an independent court established by law, which is set forth and protected by Article 6 of the European Convention on Human Rights (ECHR). (4) Right of judicial protection of rights set forth by Article 54 of the Constitution of the Republic of Kosovo. 17 (5) Right to protection of property and possessions set forth and protected by Article 1 of the European Convention on Human Rights - ECHR (Additional protocol Paris, 20.III.1952), namely by Article 46 of the Constitution of the Republic of Kosovo. (6) Irregular functioning of judicial system and the denial of the right of access to court causes serious consequences also to the rule of law, strengthening of the public order and protection of the region from unlawful 18 practices. (7) Legal prescriptions: Criminal offenses for which, based on the Criminal Code of the Republic of Kosovo, prescriptions are foreseen, as a result of lack of access to court 16 Violation of the right for access to a court causes also a violation of the right to have an effective remedy, because with the violation of the right for access to a court, the submission of documents to court is made unable, submissions such as appeals and other legal remedies. 17 Article 54 of KCC foresees: Everyone enjoys the right of judicial protection if any right guaranteed by this Constitution or by law has been violated or denied and has the right to an effective legal remedy if found that such right has been violated. 18 Denial of the access to a court and to justice bodies makes not only state bodies but also persons unable to realise their legal obligations and report on a crime.

8 and irregular functioning of judicial bodies occur after the expiry of the legal limitation foreseen. 19 RECOMMENDATIONS OF THE OMBUDSPERSON Based on these findings, and in conformity with Article 135, par. 3 of Constitution of the Republic of Kosovo, and Article 16, par. 8 of Law no. 05/L-019 on Ombudsperson, the Ombudsperson recommends the: 1) Kosovo Judicial Council should functionalise the judicial system in the region of Mitrovica, in at the shortest time possible, enabling access to civilian and criminal case files, which have been blocked since 2008, and hence proceed with the subsequent ones. 2) The Court in the Northern part of Mitrovica should take all measures required, to remove all physical and administrative obstacles for access to documents, and should cooperate, at the appropriate level, with the other part of branches of the Court of Mitrovica. In conformity with Article 132, paragraph 3 of Constitution of the Republic of Kosovo ( Every organ, institution or other authority exercising legitimate power of the Republic of Kosovo is bound to respond to the requests of the Ombudsperson and shall submit all requested documentation and information in conformity with the law ) and Article 28 of Law no. 05/L-019 on Ombudsperson ( Authorities to which the Ombudsperson has addressed recommendation, request or proposal for undertaking concrete actions, must respond within thirty (30) days. The answer should contain written reasoning regarding actions undertaken about the issue in question ), will you kindly inform us on actions to be undertaken about this issue. Sincerely, Hilmi Jashari Ombudsperson 19 Prescription is presented in those cases where criminal offenses have shorter statutory limitation than eight (8) years, mainly criminal offences containing punishments with fewer years of imprisonment, criminal offenses containing fines and minor offenses.