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Life in Kosovo Discusses the Justice System

23 10 2008  This week, Life in Kosovo featured a debate on the Justice System.

Does Kosovo have a functional Justice System and is this a politicized justice? What is happening with the Justice Council of Kosovo? What are the proper roles of Kosovo’s courts and prosecutors?

These were the questions raised in the latest “Life in Kosovo” debate, moderated by Betim Musliu, BIRN’s judicial reporter. The panellists who participated in the debate were:

Hilmi Zhitia, head of the Office of the Public Prosecutor of Kosovo,
Nekibe Kelmendi, Kosovo’s Minister of Justice,
Rexhep Haxhimusa, head of Kosovo’s Supreme Court and Chairman of the Kosovo Judicial Council;
Kujtim Kerveshi, legal expert.

The debate started with questions on the state of the judicial system in Kosovo, currently the most criticized sector in the country. Haxhimusa revealed that they have been trying to create a proper judicial system.

“Despite many flaws and weaknesses, considerable progress was made in consolidating the judicial system throughout this period,” said Haxhimusa.

According to Haxhimusa, difficulties began immediately following the 1998-1999 war because, as he said, Kosovo controlled neither the legal structure, nor the court system.

“The whole power of the judiciary throughout this time resided in the hands of one person – the head of UNMIK. In other words, we may say there had not been a proper judicial system in the country due to interferences from the executive,” said Haxhimusa.

According to him, a large portion of the blame belongs to the management of Kosovo by the international community. “But now,” added Haxhimusa, “after the ratification of Kosovo’s Constitution we are committed to creating a judiciary system that is separate from the executive and the legislative branches.”

“Today, we have the Judicial Council, which is trying to ensure the proper working of the courts in the country,” said Haxhimusa.

The head of Kosovo’s Supreme Court reported that there are some one hundred eighty thousand unresolved cases in the country. Yet, according to him, this should not be taken as a reason to view Kosovo’s judicial system as a failure, because 66 percent of cases are resolved within a year.

Zhitia reported that some one thousand cases in Kosovo courts have been allowed to drop, but according to him, they were not serious cases or linked to high crimes.

“As a result, accusations against the individuals connected to these cases were dismissed,” said Zhitia.

Regarding the status of Kosovo’s Prosecutors, Zhitia reported that he doesn’t know what Kosovo’s Prime Minister, Hashim Thaci, meant when he said that Kosovo’s prosecutors are ‘sleeping on their dossiers.’

Asked whether Zhitia himself sees the large number of illegal buildings in Prishtina, and whether they ought to be prosecutor’s responsibility, Zhitia pointed out that illegal building is a phenomenon present in all countries in transition.

“This is more an administrative issue and a competence of the urban planning office than the prosecutor’s office. The prosecutor’s office can only react if evidence shows that a certain building was made without respecting the rules of construction.”

While illegal construction in Kosovo’s capital is rampant, according to Zhitia, prosecutors have not identified any building which fails to follow the necessary regulations.

Kujtim Kerveshi, legal expert, said that Kosovo’s legal system doesn’t prove itself to be efficient. According to him, a large part of the fault lies with the international community in Kosovo.

“The coordination between Kosovo’s Police Forces, Prosecutor’s Office and other relevant judicial actors is miserable,” said Kerveshi.

While coordination between these institutions was not promoted by the international community in Kosovo, Kerveshi believes that Kosovar authorities wouldn’t have let the judiciary’s problems persist for so long that they are evident even now, after the declaration of independence.

For Kerveshi, the cooperation between Kosovo’s Police Service and courts is miserable.

A report from the Anti-Corruption Agency in Kosovo reveals that in one and a half years Kosovo’s budget has lost 36 million euros due to irresponsible prosecution in the country.

Zhitia reported that prosecutors are committed to dealing with cases where abuses were shown, as in those cases displayed in the report by the anti-corruption agency.

While many reports from various international organisations denounce the miserable conditions in the justice system, no high official has been arrested or suspended from his or her job.

“Usually ministers are not suspended, as they are not the subject of these accusations directly, but others, such as permanent secretaries, were suspended,” said Zhitia.

Nekibe Kelmendi, Kosovo’s Minister of Justice, reported that her ministry charged four people accused of abuses, one of whom was a permanent secretary. “The inquest went for three of the accused while the charges against the permanent secretary were dismissed.”

“I don’t know the reasons why this happened. But the charges were initially against the four of them. However, the charges against the permanent secretary were detached.”

On the other hand, Zhitia reported that this was the first time that he was told that the charges against the permanent secretary were detached.

Yet, he added, “I am not a computer to memorise all the cases.”

While Kosovo’s citizens often cannot resolve their legal issues within a reasonable time, Haxhimusa stressed that, despite all criticism, the judicial system in Kosovo cannot be considered a failure.

“Don’t forget that five hundred ninety thousand cases are terminated within a year. Whether they are done properly or not, this is to be questioned further, but they do finish!”

Yet, he revealed the low number of judges creates weaknesses in the system.

“Kosovo has one of the lowest number of judges per capita in Europe,” and, according to him, this results in a low-quality judicial system.

For Nekibe Kelmendi, the justice minister, this high number of cases brought to Kosovo’s courts shows that citizens have not lost their confidence in the judicial system; they do try to resolve issues through courts.

According to her, greater financial support from the government and better working conditions for the prosecutors would ensure more accountability and better results.

“Since 2004, I have been continuously asking for more judges, prosecutors and administrative staff, but I was told by UN officials in Kosovo that I was trying to solve a social problem,” said Kelmendi, adding that all the judges were smoking in the hallway.

Asked whether we couldn’t do anything more to promote the judicial system than just blame UNMIK, Kelmendi stated that justice was exclusively the competence of UNMIK until the ratification of the Constitution.

“There is a need to offer support to the judicial system rather than just demanding results from it,” said Kelmendi, pointing out that during the UNMIK administration, the system didn’t have access to financial resources.

“I witnessed a case where a judge took his documents to print from another office due to the lack of a printer in his own office,” said Kelmendi.

Turning to the Judicial Council, Haxhimusa said that this institution is a regulator of the judicial system within its framework of competencies.

“The Judicial Council of Kosovo is a regulator of the judicial system. This organ was meant to be independent, transparent and unbiased. Yet many point out that this institution is highly influenced by political interference,” said Haxhimusa.

According to him, finances, the nomination of judges, disciplinary issues, and policy development are among the main
responsibilities of the Council.

“The current composition of the Council, as set by the international community, involving a foreign prosecutor and a foreign judge along with the head of the Supreme Court and the Minister of Justice,
impedes the proper work of the Council,” asserted Haxhimusa.

According to him, the council should consist only of individuals who don’t have other working commitments and they must be paid.

According to Kerveshi, in order for the Council to be fully independent, it should not have any member from the executive or the legislative branches, but that is not the case in Kosovo.

“The Council should include neither deputies nor the Minister of Justice. This is one of the chief conditions set forth in the Ahtisaari’s Plan which was not implemented in this sector by our leaders.”

For Kerveshi, UNMIK cannot be blamed all the time, as it was not responsible for financial allocation or distribution.

On the other hand, Kelmendi pointed out that a special budget shall be allocated for the Council in order to improve the quality of this institution.

Haxhimusa supported Kelmendi’s view that better conditions are needed for judges.

“There is a dire need for bigger halls which would be more appropriate for judicial processes,” said Haxhimusa, adding that while these details may be small, they loom larger when looking
at the situation as a whole.

The latest report by the OSCE sheds light on various incidents of political interference in the judicial system.

Haxhimusa said that he does not know of any case of political interferences in the judicial system in Kosovo, not only on the Judicial Council but in the judicial system in general.

On the other hand, there are clear indications that political interferencewas brought to bear after the arrest of a teenager who tried to enter into the Prime Minister’s home.

“I don’t think this particular case has been subject to political interference. It is not fair to take a certain case and generalise from that,” said Haxhimusa.

Furthermore, there is the case of Ahmet Alishani, advisor to Nexhat Daci, the former speaker of Parliament. Due to political pressures, his case remained in the public prosecutor’s office for six months without his dossier being opened, BIRN sources reveal.

Zhitia didn’t exclude the possibility that this case may have been prone to political interference but declared that he was unaware of the pressures and from whom they came.

“Alishani’s case was very delicate and required immediate tackling.”

Asking whether the declaration of Kosovo’s premier that prosecutors are ‘sleeping on their dossiers’ seems to have merit, Zhitia claimed that when prosecutors ‘woke up,’ Alishani’s issue was given to international prosecutors.

Politicization of the judicial system is the worst thing that can happen to a state. Albania’s judicial system is a good example of how a rotten judicial system can erode the rule of law.

For Kerveshi, political interference cannot only be understood as ‘requests’ from politicians to prosecutors. “The tendency to keep the judicial system in an unstable situation is also a form of political interference done to maintain a shaky system”.

Kerveshi praised the Life in Kosovo show for tackling this issue. According to him, the question of an independent judiciary is rarely, if ever, discussed in TV debates.

Discussing the Disciplinary Commission of the Judicial Council, Haxhimusa said that this institution is always actively pursuing the duties it is charged with.

“In 8 years, seventy-three cases were subject to study by the Commission, as a result of which seventeen judges and prosecutors ended up being suspended from their jobs.

Highlight of the Week

While this report is usually given at the end of the show, the tradition was broken this time due to a very sensational occurrence in Pristina’s District Court.

An investigative report done by Betim Musliu revealed how Zahide Gjonaj, a judge for civil cases in Pristina’s District Court who deals with marital issues, was directly challenged for having disposed of six of her cases without even registering them with the court clerk.

A hundred euro note was found - apparently forgotten - in one of the files that Gjonaj was dealing with. This information was confirmed by the judicial inspector who is investigating Gjonaj, though she has not been suspended from her job. “I have no comment.

This is absolutely not true,” said Gjonaj to the Life in Kosovo show, denying the evidence set before her.

In addition, all the hearings took place in her office, where Gjonaj played the role of judge as well as lawyer for most of her clients.

While the majority of judicial cases remain on a judge’s docket for months or years, the cases that Gjonaj dealt with were finalised in 15 minutes to one hour.

Gjonaj explained that those cases were more urgent than others. “It is completely reasonable and lawful to deal with cases of urgency,” said Gjonaj.

Contradicting Gjonaj, Haxhimusa declared that there is a law establishing the procedures for the resolution of civil and penal cases, according to which cases cannot be dealt with in that short a time period.

Most of Gjonaj’s cases had similar irregularities and reports reveal they were resolved in her office. This means that Gjonaj, beside her role as a judge, took the role of the lawyer as well.

The expertise of the civil judge went so far that she dealt with other judges’ issues.

Zhitia said that he had received anonymous letters from citizens complaining
of several judges, including Gjonaj.

The moderator, Musliu, said that accusations had been directed by another prosecutor at Zhitia himself for not protecting citizen’s interest rather than pursuing economic crimes.

When asked whether he is investigating himself, Zhitia said that “this accusation shall be addressed by the competent institutions. The accusation from prosecutor Sylejmani is personal revenge.”

Discussing judicial legislation, which is still lacking in Kosovo despite the swift passage of some other minor laws, Kelmendi revealed that next year is the final deadline to implement these laws, which, according to her, will ensure a proper judicial system.

For Kerveshi, Kosovo must create proper judicial structures and institutions based on the recommendations of the EU, taking into consideration that Kosovo’s future is in the EU.

Responding questions about the sluggish pace of reform and why Kosovo still lacks a jurisprudence exam, Kelmendi said that the current commission is outdated, while a proposal for the renovation of this institution was refused by the Parliament without explanation.

Commenting on North Mitrovica, a region where Kosovo’s constitution is not enforced and the Kosovar institutions created after the conflict are not respected, Haxhimusa said that this situation is nonsense.

“This situation was predictable even before the ratification of the Constitution, as that region is fiercely resistant toward the new institutions.”

Asked how Kosovo’s judicial system is to be coordinated with EULEX, Haxhimusa reported that they are here to monitor proceedings and to take charge of some delicate issues, such as war crimes and the like.

After the broadcast of the feature entitled “Kosovo’s son-in-law,” the municipal debate “Life in Peja” moderated by Jeta Xharra was broadcast.

Life in Kosovo is a co-production between Kosovo Public Television, RTK and the Balkan Investigative Reporting Network, BIRN. It is broadcast every Thursday, starting at 20:20.