International Crisis Group - The Rule of Law in Independent Kosovo
Executive Summaey ans Recommendations
More than two years after declaring independence, Kosovo struggles with uneven rule of law and a weak justice system that is failing its citizens. The police, public prosecutors and courts are erratic performers, prone to political interference and abuse of office. Organised crime and corruption are widespread and growing. Realising that prosperity, relations with the European Union (EU) and affirmation as an independent state depend on the rule of law, the government has taken important steps, replacing key officials and passing long-delayed reforms. But critical weaknesses remain, notably in the courts, and the government, supported by the international community, must act swiftly to curtail them.
Kosovo suffers from the widespread impression that it is run by a lawless political elite in control of every aspect of society. The EU rule of law mission, EULEX, is investigating widespread corruption at the highest levels, and its efforts to date have shown gaping holes in regulation and enforcement. This reputation keeps investment out and the country mired in poverty. A two-pronged approach is needed, tightening institutions and regulation to close off opportunities for corruption while investigating the worst of past abuses.
In some respects, Kosovo’s reputation for lawlessness is exaggerated. The country has a low rate of violent crime, inter-ethnic crime is rare, and Serbs in most of Kosovo live securely. But the judicial system is weak. Few crimes end with their perpetrators in prison. Court procedures suffer from widespread distrust, fearful or unwilling witnesses and shoddy work by prosecutors. On the civil law side, it is all but impossible for citizens and domestic and international corporations to enforce their rights in court. Property disputes are widespread, and since they cannot be reliably resolved in court, occasionally degenerate into violence. The dysfunctional civil law system, choked with a backlog of cases stretching back to 2000-2001, scares off investment. Demoralised and exhausted judges both struggle under the case backlog and are dogged by a reputation for corrupion and favouritism. Plaintiffs endure baffling rounds of appeals, remands and delays, often featuring deliberate errors. Bribery and even violence have become attractive means of extrajudicial dispute resolution.
The police are one of Kosovo’s genuinely multi-ethnic institutions, with Serbs and others integrated in all regions and at all levels. They have strong public support and a willing manpower pool but are poorly managed and lack vital skills as their leadership increasingly neglects training. The force can deal effectively with routine, low-level crime but has a limited ability to fight organised crime, financial crime and fraud, drugs and human trafficking and other specialised challenges. It has a hostile relationship with the public prosecutors, who are charged with leading all police investigations of serious crime. The consequence is that the police do as they please, and the prosecutors are under-serviced and overwhelmed.
The institutions that monitor the justice system – the Kosovo Judicial Council (KJC), which oversees judges, the Police Inspectorate of Kosovo (PIK), and the justice ministry, which supervises prosecutors – are not working properly. The Council is paralysed by lengthy vacancies in key positions. Its components, notably the Office of Disciplinary Counsel and the Judicial Audit, responsible for investigating corruption and other problems in the courts, work well; still, their findings remain without effect because the full body cannot act. The ministry suffers from weak leadership and a lack of political support, though a new minister appointed in April 2010 is expected to improve performance.
The justice system’s weakness is visible above all in Kosovo north of the Ibar River, the small Serb-held zone that Serbia in effect controls. There is no real criminal justice in the North, as its Serbia-run courts cannot cooperate with the UN-mandated Kosovo Police (KP). Nevertheless, the North’s crime levels are similar to those of Kosovo as a whole, and the small local population thrives on handouts from Belgrade. The border between Kosovo and Serbia has become much better controlled recently, and arrests, mainly in Serbia, have cut down drastically on smuggling. But the North remains a stumbling block in relations between Kosovo and Serbia and between both of these and EULEX. Out of excessive caution, the EU has not based its police in the North, leaving the area free for organised criminal gangs. Its efforts to replenish the Mitrovica court with local judges have failed, while offending both Pristina and Belgrade.
This report surveys the domestic legal system; a subsequent report will cover international aspects of the rule of law issue.
To the President, Government and Assembly of the Republic of Kosovo:
1. Support fully efforts to investigate high-level corruption and prevent its recurrence.
2. Adopt urgently the key framework laws for the judicial system, including:
a) the laws on courts, prosecutors and the judicial and prosecutorial councils; and
b) the amended criminal code, code of criminal procedure and code of contested procedure.
3. Appoint urgently the remaining members of the Kosovo Judicial Council.
4. Establish a high-level committee bringing together donors and international representatives with their counterparts in the Kosovo government, to:
a) put the government back in control of important legislative and organisational decisions related to the rule of law; and
b) compel the police, prosecutors and internal affairs and justice ministries to cooperate in the fight on crime.
5. Double, at a minimum, the number of judges and prosecutors and bring their salaries and benefits in line with those of other branches of government service, before the full implementation of judicial sector reform and no later than 31 December 2010.
6. Provide technical help and political support to the PIK and the internal investigations unit of the KP.
7. Increase the capacity of the Mitrovica district court by:
a) facilitating the appointment of Albanian and Serb judges without violating the integrity of Kosovo’s jurisdiction; and
b) transferring appropriate tasks to qualified local and international legal staff.
To the Kosovo Police, the State Prosecutor and the Internal Affairs and Justice Ministries:
8. Improve prosecutor-police cooperation by establishing joint teams for serious cases, including specialised ones for financial and other complex crimes.
9. Mandate training for police and prosecutors in specialised work on organised crime, drugs and human trafficking, financial crimes and counter-terrorism.
10. Establish urgently a database of crimes and cases, so that police and prosecutors can work together and formulate an effective anti-crime strategy.
To the Government of the Republic of Serbia:
11. Take steps to support strengthened rule of law in Kosovo, including
a) return all official documents, including cadastral and property records and court files taken in 1999;
b) support appointment of Serb judges under Kosovo law; and
c) cooperate with EULEX and Kosovo on developing cross-border strategies to impede human trafficking and drug smuggling.
To the International Community in Kosovo:
12. Support EULEX in investigating and prosecuting high-level corruption and acting in the North of Kosovo.
13. Maintain strong pressure on the government to implement the rule of law and ensure that international advice and assistance are coordinated and consistent.
Pristina/Brussels, 19 May 2010
Photo credit: Ivan S. Abrams