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Original Contributi= on by Martin W=C3=A4hlisch, currently based in Pristina (Kosov= o), is Senior Researcher at the Center for Peace Mediation, Institute for C= onflict Management, at the European University Viadrina, Humboldt-Viadrina = School of Governance.
Kosovo=E2=80=99s present framework of the Rule of Law results to a great=
extent from its past. An autonomous province within the Socialist Federal =
Republic of Yugoslavia, Kosovo already had its own first constitution since=
1974. Whether there was rather a Rule by Law instead of a Rule
In 1989, Serbian President Slobodan Milosevic brought Kosovo under the d= irect control of Serbia. Tensions escalated into a humanitarian crisis and = a phase of absence of the Rule of Law; this was followed by an intervention= of NATO forces that ended the war in 1999. To fill the vacuum of order, th= e UN Security Council established a civilian interim administration (UNMIK)= . UNMIK was conceptualized to manage and carry out state functions until a = final solution is reached. Simultaneously, the UN peacekeeping mission took= over legislative, executive and judicial powers. As part of UNMIK=E2=80=99= s institution-building pillar, the Organization for Security and Cooperatio= n in Europe (OSCE) was given the lead in ensuring the respect for human rig= hts and the Rule of Law. In July 1999, a Department of Judicial Affairs was= established to set up local justice institutions. In February 2000, a grou= p of international judges and prosecutors was created. Its core mandate was= to build a multi-ethnic, independent, impartial and competent judiciary (I= NPROL 2009:1).
After a series of unsuccessful talks between Pristina and Belgrade to se= ttle the status problem, the Kosovo Assembly announced the independence of = the Republic of Kosovo on February 17, 2008. A constitution for the country= was adopted shortly after. The draft of the constitution was prepared by a= working group reflecting the comprehensive representation institutions in = Kosovo, such as members of the Government, the Office of the President, int= ernational organizations (USAID, ICO, Council of Europe), as well as other = local and international legal experts. Several provisions were derived from= the =E2=80=9CAhtisaari Plan=E2=80=9D, a comprehensive peace proposal to se= ttle the Kosovo issue which was formulated by UN Special Envoy Martti Ahtis= aari in March 2007. Alongside granting specific rights to non-Albanian mino= rity groups, the plan includes a provision for international support in the= area of the Rule of Law =E2=80=9Cin accordance with internationally re= cognized standards and European best practices=E2=80=9D (see Article 1= 3, United Nations Office of the Special Envoy for Kosovo 2007:8). To overse= e the implementation, the International Civilian Representative (ICR) was i= nstalled, which acts on the premise that =E2=80=9CKosovo shall be respo= nsible for managing its own affairs, based upon the democratic principles o= f the rule of Law, accountability in government, and the protection and pro= motion of human rights, the rights of members of all Communities, and the g= eneral welfare of all its people.=E2=80=9D (see Article 1, Annex IX, U= nited Nations Office of the Special Envoy for Kosovo 2007:52).
Parallel to the declaration of independence, the European Union Rule dep=
loyed its Rule of Law mission EULEX to Kosovo. Among others, the mission al=
so=C2=A0 monitors, mentors, and advises the competent Kosovo institution in=
all areas related to =E2=80=9Cthe wider rule of law (including a custo=
ms service)=E2=80=9D (Article 3, Council of the European Union 2008:2)=
. As such, EULEX defines three areas of the Rule of Law: an independent pol=
ice, justice, and customs. They are aimed to be kept =E2=80=9Cfree from=
political interference=E2=80=9D and, as already configured in the Ath=
issari-Plan, =E2=80=9Cadhering to internationally recognized standards =
and European best practices=E2=80=9D (Article 3, Council of the Europe=
an Union 2008:2). As an external guarantor and support mechanism for the Ru=
le of Law, EULEX was also equipped with certain executive powers particular=
ly to investigate, prosecute, and adjudicate serious and sensitive crimes i=
n cooperation with Kosovo authorities.
Kosovo=E2=80=99s constitution enshrines the concept of the Rule of Law t= hrough numerous normative provisions: As an overall guiding basis, Article = 3, para. 1 expresses that =E2=80=9Cthe Republic of Kosovo is a multi-et= hnic society consisting of Albanian and other Communities, governed democra= tically with full respect for the rule of law through its legislative, exec= utive, and judicial institutions."=C2=A0 Systematically interlink= ed with the right of equality before the law (Article 3, para. 2), the Rule= of Law is envisaged as a key instrument to prevent tensions within Kosovo= =E2=80=99s diverse communities.
Embraced as a fundamental value in Article 7, para. 1, the respect for t= he Rule of Law is once more well placed between the principles of peace, eq= uality, and non-discrimination: =E2=80=9CThe constitutional order of th= e Republic of Kosovo is based on the principles of freedom, peace, democrac= y, equality, respect for human rights and freedoms and the rule of law, non= -discrimination, the right to property, the protection of environment, soci= al justice, pluralism, separation of state powers, and a market economy.=E2= =80=9D
The separation and limitation of state powers is preserved in Article 4,=
para. 1: =E2=80=9CKosovo is a democratic Republic based on the princip=
le of separation of powers and the checks and balances among them as provid=
ed in this Constitution.=E2=80=9D Generally, laws are solely enacted b=
y the Assembly (Art. 80), the President can only issue executive regulation=
s as decrees in particular situations (Art. 84, para. 4), such as to declar=
e the State of Emergency setting forth the nature of the threat and any lim=
itations on rights and freedoms (Article 131, para. 3) or to dissolve the A=
ssembly if two thirds of all deputies vote in favor of dissolution (Art. 82=
, para. 1). Other hybrid legislative-executive powers of the President, lik=
e the =E2=80=9CUkas=E2=80=9D of the Russian President, do not exist. Non-pa=
rliamentary regulations only fall in the competency of the Government if th=
ey involve decisions-making, issuing legal acts, or regulations =E2=80=9C
The right to review and the assurance of consistent interpretation by an= independent judiciary is declared in Article 4, para. 5: =E2=80=9CThe = judicial power is unique and independent and is exercised by courts.= =E2=80=9D=C2=A0 Article 102, para. 1-4 about the General Principles of the = Judicial System states: =E2=80=9C1. Judicial power in the Republic of K= osovo is exercised by the courts.2. The judicial power is unique, independe= nt, fair, apolitical and impartial, and ensures equal access to the courts.= 3. Courts shall adjudicate based on the Constitution and the law.4. Judges = shall be independent and impartial in exercising their functions.=E2=80=9D<= /em>
Article 54 elaborates on the judicial protection of rights: =E2=80=9CEveryone enjoys the right of judicial protection if any right guaranteed b= y 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.= =E2=80=9D Art. 102, para. 5 completes: =E2=80=9CThe right to appea= l a judicial decision is guaranteed unless otherwise provided by law. The r= ight to extraordinary legal remedies is regulated by law. The law may allow= the right to refer a case directly to the Supreme Court, in which case the= re would be no right of appeal.=E2=80=9D
As an underlying principle, the constitution is supreme (Art. 16, para. = 1-3): =E2=80=9CThe Constitution is the highest legal act of the Republi= c of Kosovo. Laws and other legal acts shall be in accordance with this Con= stitution. The power to govern stems from the Constitution.=E2=80=9D S= imilar to other post-communism/socialism countries in Europe, constitutiona= l rights are safeguarded by a strong Constitutional Court, which is establi= shed as the state=E2=80=99s highest legal authority (Art. 4, para. 6): =E2= =80=9CThe Constitutional Court is an independent organ in protecting th= e constitutionality and is the final interpreter of the Constitution.=E2=80= =9D Issues of jurisdiction by the Constitutional Court are wide: the C= ourt can be approached by the Government, a municipality, the Assembly as w= ell as individuals after the exhaustion of remedies (Art. 113). Temporarily= , until the end of the international supervision of the implementation of t= he comprehensive proposal for Kosovo status settlement, the Constitutional = Court is composed also of three international judges (currently from USA, B= ulgaria, Portugal), which have been appointed by the ICR (Art. 152).
Constitutionally installed and protected is also the role of the Kosovo = Judicial Council (Art. 108), which shall ensure the independence and impart= iality of the judicial system. The Kosovo Judicial Council is responsible f= or recruiting and proposing candidates for appointment and reappointment to= judicial office, in particular to fully reflect the multi-ethnic nature of= Kosovo. Moreover, the Kosovo Judicial Council oversees the transfer and di= sciplinary proceedings of judges. At least once a year, the chair of the Ko= sovo Judicial Council addresses the Assembly regarding the Judicial System.= As at the Constitutional Court, some of the members of the Judicial Counci= l are temporarily seconded as international practitioners (Art. 151).
Different to most other constitutions in Europe, the institution of the =
State Prosecutor (Art. 109), the Kosovo Prosecutorial Council (Art. 110), a=
nd an independent advocacy (Art. 111) are upheld in Kosovo=E2=80=99s consti=
tution. In connection with the Kosovo Prosecutorial Council, it is emphasiz=
ed that all persons shall =E2=80=9Chave equal access to justice=E2=80=
=9D (Art. 110, para. 1). Additionally, the Council ensures that the St=
ate Prosecutor is =E2=80=9Cindependent, professional and impartially re=
flects the multiethnic nature of Kosovo and the principles of gender equali=
ty=E2=80=9D (Art. 110, para. 1).
The stock of reviewed legal findings is still thin. From October 2009 un= til November 2010, the Constitutional Court=C2=A0issued five judgments= , 16 decisions, and 19 resolutions.
The first decision of the Constitutional Court already attracted attenti= on: The case Tom=C3=AB Krasniqi vs. RTK et Al (Decision, = Interim Measure, Case KI 11-09, October 16, 2009) brought down the collecti= on of public broadcasting fees. The applicant, Tom=C3=AB Krasniqi, a pensio= ner, petitioned for provisional measures to suspend the charging of Euro 3,= 5 for the public radio and television broadcaster RTK. Krasniqi stated that= the fee represents 10% of his 40 euro retirement payment per month. Though= no signal can be received in his area, the amount was directly deducted fr= om his electricity bill. The Constitutional Court found this procedure unco= nstitutional. The Court ruled the collection system to be discriminatory fo= r taking electricity counters as a reference point and not households. The = practice was leading to absurd constellation, where citizens had to pay tel= ecommunication fees for their elevator, as it had its own electricity count= er. RTK is currently funded by the ordinary Kosovo budget until an alternat= ive source of financing is found.
Noticeably, the Constitutional Court flags decisions of the European Cou= rt of Human Rights besides referring to domestic law. The Court highlights = Article 53 of the Kosovo Constitution for the interpretation of human right= s provisions, which says that human rights and fundamental freedoms =E2= =80=9Cshall be interpreted consistent[ly] with the court decisions of the E= uropean Court of Human Rights.=E2=80=9D Though the Republic of Kosovo = is not an official signatory member state to the European Convention on Hum= an Rights, it constitutionally committed to it. Thus, the Court explicitly = states that case law by the European Court on Human Rights serves =E2= =80=9Cas our very basis while interpreting all our decisions=E2=80=9D = (Tom=C3=AB Krasniqi vs. RTK et Al, Decision - Interim Measure - IM - Case K= I 11-09, pp. 3-4), which illustrates firmly what the Athissari-Plan meant w= ith =E2=80=9Cadhering to internationally recognized standards and Europ= ean best practices=E2=80=9D. A good indicator for the independence of = the Constitutional judges and the dynamics between them is the existence of= dissenting opinions. A local judge (Judge Gjyljeta Mushkolaj) and an inter= national judge (Judge Almiro Rodrigues) opposed the majority vote.
Another major case is a judgment of the Constitutional Court in Septembe= r 2010 regarding Fatmir Sejdiu, the first president of the Republic of Koso= vo (Judgment, Case No. KI 47/10, September 29, 2010). The Constitutional Co= urt ruled that Sejdiu had violated the constitution by concurrently holding= two positions: one as president of the country and the other as leader of = the Democratic League of Kosovo (LDK) party. Sejdiu argues that he had =E2= =80=9Cfrozen=E2=80=9D his function as chairman of LDK after he was elected = President of Kosovo. The constitution, however, does not support such an op= tion. The Court analyses that: =E2=80=9COne of the fundamental ways of = winning the hearts and minds of the citizens who will vote in elections is = the ability of a political party to be able to assert who is supportive of = and will endorse the parties' positions and candidates. If a political part= y has the endorsement of the President of the Republic, it has a substantia= l political asset to further its political agenda and the election of its c= andidates for public office.=E2=80=9D (para. 66) Given this ambiguity,= the Court underlines the integrative role of the President within the syst= em of separation of powers: =E2=80=9CBearing in mind the considerable p= owers granted to the President under the Constitution is it reasonable for = the public to assume that their President, =E2=80=9Crepresenting the unity = of the people=E2=80=9D and not a sectional or party political interest, wil= l represent them all. Every citizen of the Republic is entitled to be assur= ed of the impartiality, integrity and independence of their President. This= is particularly so when he exercises political choices such as choosing co= mpeting candidates from possible coalitions to become Prime Minister.=E2=80= =9D (para. 69) The Court concluded that Sejdiu had committed a violati= on of the Constitution under Article 88, para. 2, by remaining the recorded= party leader of one the most prominent political parties while being the P= resident of the country.
The Sejdiu case is truly an important sign in the short history of the R=
epublic of Kosovo. It sets the Rule of Law on a strong base for future deve=
lopments.=C2=A0 The judgment breaks through the long predominant notion tha=
t politicians are sacrosanct, a prominent idea of the communism era. The ca=
non of the supremacy of the Constitution is impressively put in action. The=
words of the Court about political parties, the role of elections, and the=
function of the President all exemplify genuine care for democracy. They d=
emonstrate that the Constitutional Court it not an alibi institution but a =
vital device for further legal challenges of the Rule of Law in Kosovo.
Though Kosovo has made steps since its independence passing legislation = and adjusting institutions, quite a few obstacles need to be overcome. Amba= ssador Christopher Dell commented at the Rule of Law Day in Kosovo in Janua= ry 2010: =E2=80=9CRule of law is not only what happens in the courtroom= s, it is what happens in the streets. But too often it remains elusive. Cor= ruption, violence, and abuse go without redress. The vulnerable lack effect= ive recourse, while the powerful manipulate laws and people to retain power= and accumulate wealth.=E2=80=9D (U.S. Embassy Pristina 2010) The rapp= orteur for Kosovo of the Council of Europe Parliamentary Assembly, Bj=C3=B6= rn von Sydow, noted in March 2010: "At present, the poor record in= the respect for the rule of law is the main problem in Kosovo. It affects = ordinary individuals in their everyday life, irrespective of the community = they belong to. It also affects governance, the functioning of the politica= l system and the administration, people=E2=80=99s trust in the institutions= , and the private sector. It is a hindrance to economic development, as for= eign and local investors are reluctant to commit resources in these circums= tances." (Council of Europe 2010:2) The latest EU progress report= expressed in November 2010 =E2=80=9Cserious concern=E2=80=9D: =E2=80=9CAlong challenges such as corruption and nepotism, the continued political = interference at different levels and indifferent forms in a number of cases= , including in the work of the Kosovo Judicial Council, is of serious conce= rn.=E2=80=9D (European Commission 2010:10) The EU report stresses that= more needs to be done concerning witness-protection, organized crime and f= ree media rights.
Low salaries for civil servants are putting the practice of the Rule of = Law in danger. Police officers, fire fighters, and prisoner guards took to = the streets in protest earlier 2010 for working conditions and wage increas= es. A judge in a local court earns about =E2=82=AC300-=E2=82=AC400 per mont= h, which is above the average income of =E2=82=AC160, but little compared t= o rising prices and the far higher wages earned in international organizati= ons. The recent adoption of the Law on Courts introduced a new salary syste= m which slightly improved the situation of the courts. However, many qualif= ied local lawyers would rather work for the OSCE, UNMIK, and embassies, or = simply go abroad. The brain drain since the war is taking its toll, and a r= enewal of national legal experts is slow (Council of Europe 2010:3).
A study by the Kosovo Democratic Institute demonstrated that the judicia= ry is the most corrupt sector (KDI 2009:6). According to interlocutors of t= he Council of Europe, up to 80% of cases are directed through benefits (Cou= ncil of Europe 2010:3). The Parliament passed a reform of the country=E2=80= =99s anti-corruption agency law in January 2010; nevertheless, bribing lega= l officials is a common ruse to speed up procedures in public administratio= ns and motivate closures of criminal investigations. There is also a sympto= matic reluctance to indict high profile criminal cases. State tenders are f= requently said to be predetermined because of nepotism, frustrating foreign= investors. Property claims remain another serious concern, and the cadastr= al register system requires a major organizational overhaul as does the pro= cess of document verification.
More importantly, the population lacks confidence in the judicial system= due to overdue adjudications. Courts and prosecution offices suffer from i= nsufficient staff numbers. Though the national vetting process for public l= aw clerks is about to be complete, only one-third of serving judges have pa= ssed the ethic vetting procedure, which has caused additional under-staffin= g of some courts (Council of Europe 2010:3).
Finally, parallel courts continue to function in regions with a majority=
of Kosovo Serb inhabitants, particularly in the North of Kosovo. Following=
the country=E2=80=99s declaration of independence, many Kosovo Serb admini=
stration staff refused to resume work under the new authorities. Until toda=
y, Serb dominated municipalities are run through funding from Belgrade. The=
Serbian government pays for schools, hospitals, the police force, firefigh=
ters, and judges. The split of the Rule of Law in the North is one of the m=
ost critical items on the agenda for the political talks between Pristina a=
To sum up, what are the characteristics of the Rule of Law in Kosovo?
First, though there has been a long standing Islamic tradition dating ba= ck to the Ottoman conquest of the Balkans and over 90% of Kosovo=E2=80=99s = population today is Muslim, the country=E2=80=99s legal system is fully sec= ular. No religious norms are supported by law. Social norms like custom or = conventions only exist, if at all, in the traditional rural Kosovo-Albanian= regions. The =E2=80=9CKanun=E2=80=9D, for instance, is a set of habitual A= lbanian laws estimated to date back to the Bronze Age (Elsie 2001:4). The A= rabic word for law, the Kanun sets forth statutes both for civil and crimin= al questions. As the most prominent customary obligations, the Kanun regula= tes the restoration of =E2=80=9Cpersonal honor=E2=80=9D, the use of =E2=80= =9Cblood revenge=E2=80=9D if a family member is a victim of assault, gives = married women very little rights, determines the =E2=80=9CCouncils of Elder= s=E2=80=9D as quasi-courts, but also explains habits of hospitality and the= role of mediators (=E2=80=9Creasonable people=E2=80=9D). Nevertheless, the= application of the Kanun in the Kosovars=E2=80=99 daily lives is rather ra= re and actual cases are seldom very little reported.
Second, defining the contemporary status of the Rule of Law in Kosovo=E2= =80=99s four main attributes are distinctive: a severe external top-down in= fluence to introduce or restore the Rule of Law in the structure of State i= nstitutions, strong safeguards to keep the independence of the Rule of Law = functioning, a weak yet growing judiciary on a local level, and an emancipa= ted Constitutional Court to ensure the Rule of Law as a key value.
Critics disqualify Kosovo as an experiment, an artificial state which co= uld not survive without foreign contributions; the =E2=80=9CRule of Law=E2= =80=9D has only been an empty formula to please donors=E2=80=99 hope for pe= ace and stability. And indeed, a decline of international support will be a= decisive factor, a test for the strength or weakness of the Rule of Law in= the country. Exhausting external support by international organizations ri= sks to substitute statehood, which in the case of Kosovo before its indepen= dence was deliberately intended but is now aimed to be dissolved.
Whether the Rule of Law rises to be a =E2=80=9CEuropean=E2=80=9D one =E2=80=9Cin accordance with internationally recognized standards = and European best practices=E2=80=9D, needs to be seen. Though propaga= ted, what is understood under these terms dogmatically is not always transp= arent. Factually, the EU launched so called =E2=80=9Ctwinning projects=E2= =80=9D in the Rule of Law field, which comprise direct peer-to-peer assista= nce by EU member states counter-parts with the goal to implement EU acquis = communautaire and legislation. On the long-term, twinnings and other progra= ms will gradually guide Kosovo closer to legal standards of the European Un= ion.
The pitfalls of a lack of the Rule of Law have been, are, and will be re= al for the citizen of Kosovo, as elsewhere =E2=80=93 reminiscent of the say= ing of former U.S. President Eisenhower that =E2=80=9Cthe clearest way to s= how what the rule of law means to us in everyday life is to recall what has= happened when there is no rule of law=E2=80=9D.
Delayed court judgments and randomness of administrative decisions lead =
to business planning insecurity, which have a clear impact on slowing down =
the economical progress of the country. Predictability and access to legal =
recourse will be essential to create trust, which might be the most crucial=
cornerstone for the Rule of Law. However, demands have to be realistic: Ko=
sovo is internally coping with political balances, essential issues of reco=
nstruction, state building (e.g. infrastructure, unemployment), and finally=
a transition of its legal elite, all of which will also effect the concept=
ual understanding of the Rule of Law.