CourtsImproved Sentencing Practices by National and International JudgesPARTIALLY IMPLEMENTED
Another heavily criticized aspect of the way March 2004 cases were handled was a tendency toward lenient sentencing by both national and international judges.36 According to the OSCE, a majority of the sentences in riot-related convictions as of late 2005 were close to the minimum applicable penalty.37 International and local officials interviewed by Human Rights Watch suggested that lenient sentences for serious crimes often result from the weak evidence presented at trial, leading judges to convict on lesser charges than those sought by the prosecution, and thereby limiting their ability to impose longer sentences.38 This underscores the need for improved training and cooperation between the police and prosecutors to ensure that all relevant evidence is presented at trial. The second most frequently quoted reason is intimidation of national judges, who, Human Rights Watch has been told, are threatened and bullied by defendants, their relatives, or their supporters, into giving more lenient sentences than the circumstances of the offense merit.39 At present, strategies to address intimidation of judges are limited to the short-term approach of having international judges hear sensitive cases. Legal experts also give as a reason for lenient sentencing lack of experience, especially among national judges.40 According to the Kosovo Ombudsperson, one of the key impediments to applying laws in Kosovo in a coherent way is a lack of familiarity and in-depth understanding on the part of national and international judges of the complicated legal framework applicable. This is particularly true for UNMIK regulations, many of which introduced unfamiliar concepts and structures, especially for judges trained in the Yugoslav era.41 As the legal academic community is still in the process of being established in Kosovo, there are few experts able to provide commentaries to help judges interpret the most complicated laws. Additionally, the absence of a constitutional court creates legal uncertainty regarding the appropriate interpretation of the law.42 The Kosovo Judicial Institute, for years under the tutelage of the OSCE, is currently the independent institution in charge of training national judges. Its trainings are supposed to strengthen capacity of judges, and make them more aware of applicable law. In order to improve sentencing practices among national judges, various entities (including the OSCE, US Agency for International Development, and European Agency for Reconstruction) have sponsored a variety of ad hoc trainings and projects, such as providing judges with consolidated legal texts with commentaries, to help them understand how the applicable law should be interpreted.43 According to an official in the institute, while it is difficult to assess the impact of its training on sentencing practices, the KJI is one of the few institutions actively seeking to address the problem.44 To date, this official stated, no similar systematic training effort has been undertaken for international judges, although they occasionally attend trainings organized by the KJI.45 The Kosovo Judicial Council, which began work at the start of 2007, is tasked with overseeing the performance of national judges and prosecutors. It has a mixed national-international membership. It deals with disciplinary actions and controls the overall quality of training. It is expected to become the key institution responsible for the quality of national judges, able to assess training needs of individual employees and take disciplinary actions where necessary.46 Concerns remain about its effectiveness, since its strategy (outlining its target goals) developed in 2006 has yet to be backed by a concrete action plan or budgetary provisions.47 The impact of its efforts on the professionalism of judges and prosecutors remains unclear. The Kosovo Law Centre is a nongovernmental organization that provides national jurists with training, literature, and training materials. It was established in June 2000 with financial support and assistance from the OSCE. Its main goal is to cultivate the professional skills of national jurists in order to establish a well trained group of lawyers, judges, and prosecutors who understand the complexity of the legal framework applicable in Kosovo and adhere to high professional standards.48 It is has not carried out training in relation to sentencing practices.49
Better Coordination between National and International JudgesNOT IMPLEMENTED
Improved coordination between national and international judges is an important element for the long-term development of the justice system in Kosovo. Since 2007 the UNMIK Department of Justice (DoJ) has sought to facilitate consultation between national and international judges, in order to reach common agreement on which cases should be assigned and to whom.50 In the view of a national judge and a national prosecutor interviewed by Human Rights Watch, the last word always belongs to UNMIK (international) judges.51 In fact, international judges take over cases at the request of the chief international public prosecutor, or the parties to the case, according to UNMIK regulation 2000/64.52 In either circumstance the decision must be approved by the DoJ, which will assign the case to an international judge. Before the case is reassigned, it is customary for the DoJ to consult the national judge in question. Nevertheless, in cases of disagreements, the decision rests with the DoJ. This procedure appears problematic for the independence of the judiciary (as does a broader issue with the structure of the DoJ, in which a number of staff combine executive and judiciary functions), and arguably violates the UN Basic Principles on the Independence of the Judiciary.53 According to a senior official from the Kosovo Law Center, it appears that most cases involving mixed ethnic parties, organized crime, or cases in which perpetrators are former Kosovo Liberation Army (KLA) members are assigned to international judges.54 As is the case with prosecutors, collaboration between national and international judges has been hampered by UNMIK’s decision in 2003 to locate all international judges (and prosecutors) in Pristina.55 Operational Electronic Case Management SystemNOT IMPLEMENTED
The functioning of the criminal justice system in Kosovo, including the prosecution of the March 2004 cases, has been seriously hampered by poor case management. Prosecutors and judges interviewed by Human Rights Watch identified case management and timetabling problems as a significant constraint on the timely adjudication of cases.56 The lack of a functional electronic case management system also makes it impossible to effectively monitor or allocate resources across the system. The inevitable result is a growing backlog of cases, with more than 50,000 civil cases and over 36,000 criminal cases pending.57 There are several hundred pending war crimes cases.58 At present, there is no legal recourse against excessively long court proceedings.59 Despite extensive training, funded by the European Agency for Reconstruction (EAR) and carried out in all regions in Kosovo during the second half of 2007, the electronic case management system is still not in use across Kosovo’s courts.60 Courtrooms are equipped with computers and the software is functioning, but court staff are said to be reluctant to use it, preferring to keep paper records as before.61 This failure has been attributed to the overall low level in Kosovo of knowledge and understanding of information technology.62 36 Human Rights Watch, Not on the Agenda, p. 49. 37 OSCE Mission in Kosovo Legal Systems Monitoring Section, “The Response of the Justice System to the March 2004 riots,” December 2005. 38 Human Rights Watch interview with an UNMIK Department of Justice official, Pristina, July 17, 2007. 39 Ibid.; and Human Rights Watch telephone interviews with a national prosecutor, January 22, 2008, and with a national judge, December 19, 2007. 40 Human Rights Watch interview with a local lawyer working for an NGO, July 16, 2007. Human Rights Watch telephone interview with a national judge, December 19, 2007. 41 Ombudsperson Institution of Kosovo, “Seventh Annual Report 2006-2007,” July 11, 2007, http://www.ombudspersonkosovo.org/?cid=2,74 (accessed November 21, 2007), p. 13. 42 European Commission, “Kosovo 2007 Progress Report,” November 6, 2007, http://ec.europa.eu/enlargement/pdf/key_documents/2007/nov/kosovo_progress_reports_en.pdf (accessed November 20, 2007) p. 12. 43 Human Rights Watch interview with a Kosovo Judicial Institute official, Pristina, July 13, 2007. 44 Human Rights Watch telephone interview with a senior official from the Kosovo Judicial Institute, February 4, 2008. 45 Ibid. 46 Human Rights Watch interview with a senior Kosovo Judicial Council official, Pristina, July 13, 2007. It is envisioned that a separate body for overseeing prosecutors, the Kosovo Prosecutorial Council, will be established at a later date. 47 European Commission, “Kosovo 2007 Progress Report,” p. 12. 48 Human Rights Watch email correspondence with the director of the Kosovo Law Centre, July 27, 2007. 49 Human Rights Watch email correspondence with a senior official from the Kosovo Law Centre, February 1, 2008. 50 Human Rights Watch interview with an UNMIK Department of Justice official, Pristina, July 17, 2007. 51 Human Rights Watch telephone interviews with a local judge, December 19, 2007, and with a local prosecutor, January 22, 2008. 52 Human Rights Watch email correspondence with a senior official from the Kosovo Law Center, February 1, 2008. 53 Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August to 6 September 1985, U.N. Doc. A/CONF.121/22/Rev.1 at 59 (1985). Principle 14 states that “the assignment of cases to judges within the court to which they belong is an internal matter of judicial administration.” 54 Human Rights Watch email correspondence with a senior official from the Kosovo Law Center, February 1, 2008. 55 Human Rights Watch interview with an UNMIK Department of Justice official, Pristina, July 17, 2007. 56 Human Rights Watch, Not on the Agenda, pp. 48-49. 57 European Commission, “Kosovo 2007 Progress Report,” p. 12. 58 Ibid. 59 Ombudsperson Institution of Kosovo, “Seventh Annual Report 2006-2007,” p. 19. 60 Human Rights Watch telephone interview with a European Agency for Reconstruction official, July 27, 2007. 61 Human Rights Watch telephone interview with a national judge, December 19, 2007. 62 Human Rights Watch telephone interview with a European Agency for Reconstruction official, July 19, 2007. |