Source: http://stars.coe.fr/doc/doc01/EDOC9057.htm
Human rights and rule of law in Kosovo
Doc. 9057
24 April 2001
Report
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Cevdet Akçali, Turkey,
European Democratic Group
Summary
The legal and human rights situation in Kosovo remains a matter for concern.
The report denounces certain weaknesses in the system put in place by the interim administration of the United Nations, and draws attention to shortcomings in human rights.
The report advocates the swift establishment of an assembly of Kosovo, composed of so-called "citizens'" parties, with the power to adopt laws which will be accepted by all the citizens of Kosovo.
I. Draft recommendation
1. The observance of human rights and the rule of law throughout the European continent, and particularly in South-East Europe, are two of the Assembly’s constant, major concerns.
2. The Assembly is sad to note that human rights continue to be flouted widely in Kosovo.
3. The Assembly notes that security of persons and property is still not guaranteed in Kosovo, despite the presence of a most imposing multinational peace force.
4. The Assembly is dismayed by the individual situation of prisoners and the conditions of their arrest and detention.
5. Responsibility for protecting and promoting human rights in Kosovo was expressly entrusted by Resolution 1244 (1999) of the Security Council to the United Nations civilian administration.
6. The gradual, but so far slow establishment of a judicial system in Kosovo is an edifying undertaking which requires the support of all European governments, including those of the region.
7. The Assembly welcomes the creation of Kosovo’s own multi-ethnic local police force and urges the United Nations civilian police force to involve the Kosovo force more in its duties.
8. The Assembly is concerned at the slowness of the process of national participation in the provisional administration set up by the United Nations.
9. The Assembly is accordingly gratified by the proposal by Mr Haekkerup, the special representative of the United Nations Secretary General, to provide Kosovo with a “legal framework” before holding general elections in Autumn 2001.
10. The Assembly is worried by the apparent contradictions in Kosovo’s current legislation which make it impossible to apply.
11. The Assembly believes that, because of its expert knowledge, the Council of Europe is at present the international organisation best placed to promote the protection of human rights in Kosovo and is particularly well qualified to participate in the drafting of legislation.
12. For these reasons, the Assembly recommends that the Committee of Ministers:
i. support the efforts undertaken by the United Nations, OSCE and the European Union to stabilise and consolidate the rule of law in Kosovo;
ii. request the United Nations interim administration to abide by the European Convention on Human Rights and other relevant Council of Europe instruments in all its actions;
iii. continue to support all the Council of Europe’s programmes of legal assistance and human rights awareness-raising in Kosovo;
iv. provide more resources to the International Criminal Tribunal for Former Yugoslavia (ICTY), so that it can carry out the necessary investigations and indictments;
v. encourage the adoption of an electoral law enabling elections to be contested by parties of citizens – as in other European countries – instead of parties based on ethnic affiliation;
vi. encourage the transfer to the future interim assembly of powers and jurisdiction in the legal and financial fields;
vii. lastly, increase the Council of Europe’s
hitherto inadequate presence in Kosovo, and its assistance to the competent
authorities, by inviting for example the Council of Europe Human Rights
Commissioner to establish contacts with the Ombudsman Institution in Kosovo.
II. Draft order
The Parliamentary Assembly refers to Recommendation
… (2001) on human rights and the rule of law in Kosovo and instructs its
Committee on Legal Affairs and Human Rights to keep closely abreast of
developments concerning the rule of law and human rights in Kosovo.
III. Explanatory memorandum
by Mr Akçali, Rapporteur
A. The judicial system in Kosovo
1. The current judicial system in Kosovo was set up by the United Nations Mission in Kosovo and comprises three levels of jurisdiction: municipal courts, district courts and the Supreme Court, with an internal appeal system within the municipal and district courts and a system of appeal from the district courts to the Supreme Court. Alongside the local judges, some forty international judges have been appointed to the Kosovo courts. “Sensitive” cases are dealt with in their entirety by the international judges. Relations between the international and local judges are generally good.
2. In the autumn of 2000, the United Nations announced their decision not to set up the Kosovo War and Ethnic Crimes Court (KWECC). Special divisions were then set up within the district courts. Regulation 2000/64 provides that upon application by the prosecutor or defence counsel, or on its own initiative, the Department of Judicial Affairs of the United Nations Interim Administration Mission in Kosovo (UNMIK) can recommend to the Special Representative of the UN Secretary General (SRSG) the designation of the special division to try a case; once this recommendation has been approved, the Department appoints the international judges to compose the “panel”. The Regulation thus in effect establishes a parallel system whereby international judges deal with cases regarded as important or sensitive.
3. When I visited Prizren District Court, I was able to appraise the situation in a conversation with one of the two international judges. It was there that the first such “panel” was set up. As an illustration, the special division sentenced a Serb to two years’ imprisonment for war crimes. Thereupon, the town was besieged for several days by Albanian demonstrators protesting against the judgment. Following this incident, the two international judges asked not to have to deal with cases of this type and are waiting to be replaced, together with the sole local judge, by three international judges who will form the bench in these special divisions.
4. There is a serious manpower shortage, obliging the judges to work in rotation. The situation is likely to worsen when serving judges’ contracts expire as they are not sure to be replaced.
5. Moreover, as the above illustration shows, the international judges’ judgments give rise to violent tensions between UNMIK and the Serb or Albanian population, as the case may be.
6. It was confirmed to me that suspects were arrested by KFOR and held in the American camp at Bondsteel but that their exact number was unknown. In addition, the SRSG can issue legislative decrees to keep in custody accused persons released by the judicial authority, if he considers that their release may jeopardise public order.
7. This does not seem compatible with the European Convention on Human Rights, which has applied in Kosovo since the promulgation of Regulation 1999/24 on the law applicable in Kosovo[1], having regard in particular to Article 5 (right to liberty and security).
8. The local judges, initially appointed for one year in December 1999, were given a three-month extension in January 2001. Apparently those whose diplomas have been checked and validated have been re-appointed for one year.
9. I was able to visit Kosovo Judicial Institute, which was set up in February 2000 and inaugurated in new premises in March 2001 at a ceremony attended by a Council of Europe delegation. With Council of Europe assistance, this institute provides in-service training in democratic principles and the rule of law for prosecutors and other judicial officers. As the “nationalisation” of the Kosovo administration progresses, the institute should soon leave the ambit of the OSCE and become independent.
10. In addition, a Kosovo Law Centre (KLC) has been set up within the Law Faculty of Priština/Prishtina University, the only university operating on a new basis, which enables students to find training courses abroad. There is also a Kosovo Bar Association, which is working on a new code of ethics.
B. The legislative framework in Kosovo
11. The law applicable in Kosovo is mainly the body of law formerly in force in the autonomous province of Kosovo-Metohija as at 22 March 1989, together with the regulations promulgated by the SRSG since 10 June 1999 under Regulation 1999/24, which has retroactive effect. In the event of conflict between them, which apparently occurs frequently, the later of the two prevails.
12. In certain exceptional circumstances, the legislation in force after 22 March 1989, ie under the exclusively Serb regime, may apply and is considered an integral part of Kosovo law; this is not entirely to the liking of the majority of the population.
13. Lastly, a large number of international instruments emanating from the United Nations and the Council of Europe, including the Universal Declaration of Human Rights, the European Convention on Human Rights, the two United Nations Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights, are applicable in Kosovo, but little is known about the extent to which they are actually applied in practice.
14. Capital punishment has been abolished in Kosovo, which is not the case in the Federal Republic of Yugoslavia.
15. Despite the efforts of the Judicial Advisory Committee (JAC), made up of national and international members, it has not so far been possible to overhaul the criminal code, and the old code of criminal procedure still applies.
16. I know of no projects for civil and administrative law. The question of property law seems no nearer a solution either, although state property was the subject of one of the first regulations issued by the SRSG.
17. Regulation 2000/38 set up the Ombudsperson institution according to a legal framework which the Council of Europe helped to draw up. This institution, comprising the actual Ombudsperson and three deputies (one international, one Kosovo Albanian and one Kosovo Serb) was inaugurated on 21 November 2000 and is mainly concerned with promoting human rights in Kosovo, rather than performing the traditional mediator’s role. The Ombudsperson spoke in my presence of serious budgetary difficulties. The institution’s survival in its present form is apparently in doubt. It is important to realise that this institution is the only place to which the traumatised population can turn to air its everyday problems.
C. The police in Kosovo
18. I was able to meet both the Commissioner of the UN Civilian Police (CIVPOL), drawn from 52 national police forces, and the Director of the Kosovo Police Service School (KPSS). I was most impressed by both as conscientious international officials convinced of the need to ‘nationalise’ their administrations.
19. The KPSS was inaugurated in September 1999 and forms the institutional foundation of the Kosovo Police Service. The school recruits, selects and trains police officers, who make up the beginnings of a professional, democratic and multi-ethnic national police force. Men and women from all Kosovo’s communities have graduated from this school. Training includes deployment in one of OSCE’s four regional training centres.
20. So far, however, no solution has been found to the difficulties arising from different national police traditions within CIVPOL. UNMIK seems reluctant to involve nationals more in investigation work. National police officers are also badly underpaid.
21. I was able to visit Priština/Prishtina Detention Centre. Kosovo Albanians, Kosovo Serbs and foreigners are held there for a variety of reasons: murder, prostitution, drugs possession, possession of explosives and assault. Seventy-two hours after arrest, prisoners are transferred from CIVPOL’s Station I to the detention centre if the Court has issued a warrant. Prisoners are apparently able to consult a lawyer, a doctor and a psychologist. Kosovo Albanians and Kosovo Serbs are separated.
22. The detention centre apparently houses neither women nor the mentally handicapped, who are held in two other detention centres.
23. Conditions in the detention centre were particularly harsh. Allegations of ill-treatment were made to us by the prisoners. There are apparently plans to build a new prison at Priština/Prishtina, but the funds have yet to be raised.
D. Institutional questions in Kosovo
24. On 6 March 2001, the SRSG announced the setting up of a group to draw up the « legal framework » for Kosovo, ie its future constitution. The group’s work seems to be nearing completion, with the participation of Serb experts who had hitherto boycotted the process. The “legal framework” will have to settle the question of the powers of the future Kosovo Assembly, general elections having been announced for October 2001.
25. The remaining stumbling blocks are the title of the document, the constitution of a Constitutional Court and the right to organise a referendum.
26. It is to be hoped that it will soon be possible to set up a parliament for Kosovo based on free and fair elections. The parliament will of course be essential for the development of democratic institutions in Kosovo and will act as a cornerstone institution representing the main political tendencies in the country. Il should become a platform for inter-kosovar dialogue and will help the kosovars to speak with one voice during the future negotiations to decide the future of this territory.
27. At local level, the municipalities set up under Regulation 2000/45 are functioning with varying degrees of efficiency. At Prizren, for example, the SRSG had to impose the appointment of two members of the Turkish community to the municipal council, after this community had boycotted the elections. This is not an isolated example and raises the problem of members’ recognition by the community they are supposed to represent.
28. At the level of Kosovo as a whole, I formed an excellent impression of co-operation between the two heads, one Kosovo Albanian and the other international, of the JIAS (Joint Interim Administrative Structure) Department for Democratic Government and Civil Society Support. However, it was confirmed to us that this level of cooperation did not prevail in all twenty departments of the JIAS.
29. We met two NGOs, the Council for the Protection of Freedoms and Human Rights and NORMA, a women’s legal assistance association. Their work with the population, independently of ethnic criteria, seems to be bearing fruit, despite the so far limited support they have received from the United Nations administration. Both were seeking to develop their contacts outside Kosovo.
E. Rapporteur’s Conclusions
30. Although the general situation in Kosovo is stabilising, grave uncertainties hang over its institutional future and, hence, over its legal organisation. The interim administration is consolidating its power, which seems contrary to the United Nations mandate to lead Kosovo towards autonomy, pending discussions on its ultimate status.
31. The population do not rely on the judicial
system to resolve their problems and the atmosphere is still one of scores
being settled between the communities. The short-term objective of the
international community must be to establish an autonomous assembly and
government which represents all Kosovo’s citizens and is capable of enacting
law recognised by all.
APPENDIX
PROGRAMME OF THE VISIT (4-6 APRIL 2001)
WEDNESDAY 4 APRIL 2001
Committee on Legal Affairs and Human Rights
14.30 Arrival in Priština/Prishtina
16:00 Briefing on Human Rights and the Rule of
Law in Kosovo by Rolf WELBERTS, Head of Human Rights and Rule of
Law, Colette RAUSCH, Head of Rule of Law, and Alisson JOLLY,
Head of Human Rights
Place: Grand Hotel
16:30 Departure to Vu?itrn/Vushtrri, accompanied by Mrs Elisabeth GRIFFIN, Human Rights Advisor to the UNMIK Police Commissioner
17:15 Visit to Kosovo Police Service School in Vu?itrn/Vushtrri; meeting with Steve BENNETT, Director of the KPSS
18:15 Departure from Vu?itrn/Vushtrri
19:00 Arrival in Priština/Prishtina. Visit to the Kosovo Judicial Institute (KJI), Priština/Prishtina, meeting with representatives of the KJI, Colette RAUSCH, Head of Rule of Law, OSCE and Christian PLATE (Training Officer)
20:00 Dinner with Nekibe KELMENDI, (Department
of Judicial Affairs) Colette RAUSCH, Head of Rule of Law; OSCE, and
Frits BONTEKOE, UNMIK Legal Advisor
Place: Il Passatore
THURSDAY 5 APRIL 2001
Committee on Legal Affairs and Human Rights
08:00 Field visit: Departure for Prizren
10:00 Arrive UNHCR Field Office Prizren
Briefing by Head of FO, Semih BÜLBÜL
Meeting with Turkish Community members
and Belgin AKALTAN, OSCE
11:30 Visit to the Court, meeting with international judge Dr Ingo RISCH
12:15 Departure from Prizren (CoE car and driver)
14.15 Arrival in Priština/Prishtina
15:00 Visit to a detention centre in Priština/Prishtina
16:00 (with AS/Mig) : Meeting with Pillar III/OSCE:
Institution building:
Human rights and refugees: Alisson JOLLY,
Head of Human Rights, Christina DAVIES, Minorities Officer, Human
Rights Section and Clive BALDWIN, Legal Adviser
Place: OSCE HQ
17:00 Rule of law: Colette RAUSCH, Head of Rule
of Law
Place: OSCE HQ
18:00 Visit to the Office of the Ombudsperson,
Priština/Prishtina, and meeting with Marek NOWICKI, Ombudsperson,
and Donna GOMIEN, Deputy Ombudsperson
Place: Ombudsperson Institution
19:00 Meeting with Human Rights NGOs: Council
for the Defence of Human Rights and Freedoms and NORMA (Association
for Legal Aid for Women)
Place: CoE Meeting Room
Common programme:
20:00 Official dinner at the invitation of the
Parliamentary Assembly
Place: Restaurant Ora
FRIDAY 6 APRIL 2001
Common programme:
08:00–09:00 Joint debriefing breakfast: Political
Affairs Committee, Committee on Legal Affairs and Human Rights and
Committee on Migration, Refugees and Demography
Place: Grand Hotel
09:00-12:00 Joint meetings with:
ú Rob PULVER and Vjosa DOBRUNA, Co-Heads of JIAS (Joint Interim Administrative Structure), Democratic Governance and Civil Society Department
ú Tom KOENIGS, Deputy Special Representative for Interim Civil Administration
ú Gottfried KOEFNER, Assistant Chief of Mission (Protection), OHCHR
12:00 Meeting with the United Nations Police Commissioner
Place: CIVPOL
13:00 Departure to Priština/Prishtina airport
Reporting committee: Committee on Legal Affairs and Human Rights
Reference to committee: Order No. 551 (1999)
Draft recommendation and draft order unanimously adopted by the committee on 24 April 2001
Members of the Committee: Mr Jansson (Chairperson), Mr Magnusson, Mr Frunda, Mrs Gülek (Vice-Chairpersons), Mr Akçali, Mr G. Aliyev, Mr Andreoli, Mrs van Ardenne-van der Hoeven (alternate: Mrs van t'Riet), Mr Attard Montalto, Mr Bartumeu Cassany, Mr Bindig, Mr Bordas, Mr Brejc (alternate: Mr Kacin) Mr Bruce, Mr Bulavinov, Mr Cilevics (alternate: Mrs Libane), Mr Clerfayt, Mr Contestabile, Mr Demetriou, Mr Dimas, Mr Enright, Mrs Err, Mr Floros, Mrs Frimansdóttir, Mr Fyodorov, Mr Guardans, Mr Gustafsson, Mrs Hadjiyeva, Mr Holovaty, Mr Irtemçelik, Mr Jaskiernia, Mr Jurgens, Mr Kelemen, Lord Kirkhill, Mr Kostytsky, Mr S. Kovalev, Mr Kresák, Mr Kroupa, Mrs Krzyzanowska, Mr Lacão (alternate: Mrs Aguiar), Mr Lento, Mr Lintner, Mr Lippelt, Mr Loutfi, Mrs Markovic-Dimova, Mr Marty, Mr McNamara, Mr Michel (alternate: Mr Hunault), Mr Moeller, Mrs Nabholz-Haidegger, Mr Olteanu, Mr Pavlov, Mr Pollo, Mrs Postoica, Mrs Pourtaud (alternate: Mr Dreyfus-Schmidt), Mr Rodeghiero, Mrs Roudy, Mr Rusytamyan, Mrs Serafini (alternate: Mr Lauricella), Mr Shaklein, Mr Simonsen, Mr Skrabalo, Mr Solé Tura (alternate: Mrs Lopez Gonzales), Mr Spindelegger, Mr Stankevic, Mr Stoica, Mrs Süssmuth, Mr Svoboda, Mr Symonenko (alternate: Mr Khunov), Mr Tabajdi, Mr Tallo, Mrs Tevdoradze, Mr Uriarte, Mr Vanoost, Mr Vera Jardim, Mr Wilkinson (alternate: Lord Rotherwick) Mrs Wohlwend, Mr Wojcik (alternate: Mr Walendziak), Mrs Wurm
N.B. The names of those members who were present at the meeting are printed in italics.
Secretaries to the committee: Mr Plate, Ms Coin,
Ms Kleinsorge, Mr Cupina
[1] Subsequently amended by Regulation 2000/59.
Council of Europe – Parliamentary Assemblehttp://stars.coe.fr/SessionAgenda/ECALSES2_01.htm#Wednesday 25 April 2001
DRAFT ORDER OF BUSINESS
of the second part of the 2001 Ordinary Session
(23 - 27 April 2001)(...)
Wednesday 25 April 2001
8.30 a.m.
Political groups
10 a.m.
1. Election of judges to the European Court of Human
Rights (possibly 2nd round)
2 Situation in Kosovo
a. Situation in Kosovo and the neighbouring regions
(Doc. 9020) http://stars.coe.fr/doc/doc01/EDOC9020.htm
Rapporteur of the Political Affairs Committee: Mrs Tarja
Kautto (Finland, SOC)
b. Human rights and the rule of law in Kosovo
(Doc. 9057) http://stars.coe.fr/doc/doc01/EDOC9057.htm
Rapporteur of the Committee on Legal Affairs and
Human Rights: Mr Cevdet Akçali (Turkey, EDG)
c. Humanitarian situation of returnees to Kosovo
(Doc. 9007 rev.) http://stars.coe.fr/doc/doc01/EDOC9007.htm
Rapporteur of the Committee on Migration, Refugees and
Demography: Mr John Connor (Ireland, EPP/CD)
d. Cultural situation in Kosovo
(Doc. 9053) http://stars.coe.fr/doc/doc01/EDOC9053.htm
Rapporteur of the Committee on Culture, Science and
Education: Mrs Elena Poptodorova (Bulgaria, SOC)
Joint debate and votes
1 p.m.
End of the sitting
senden