Functionalization of Special Court postponed

(Klan Kosova & KTV))

On Wednesday, The Specialist Chamber of the Constitutional Court delivered its Judgment on the Referral of the Rules of Procedure and Evidence, adopted by the Judges of the Kosovo Specialist Chambers.

The Specialist Chamber of the Constitutional Court determined that nine rules were not consistent with Chapter II of the Constitution of Kosovo concerning ‘Fundamental Rights and Freedoms’.  It also found that it was unable to declare one further rule to be consistent with Chapter II of the Constitution.

The Judgment is sent to the Judges in Plenary for further action on the affected provisions.

The Rules of Procedure and Evidence govern the conduct of proceedings before the Specialist Chambers and Kosovo Specialist Prosecutor’s Office.

The Specialist Chamber of the Constitutional Court recalled that, pursuant to the Law, the Rules are required to reflect the highest standards of international human rights.

Following the Judgement, the President of the Specialist Chambers, Ekaterina Trendafilova, said that these rules will be soon corrected.

“I will as soon as possible convene a Plenary in order to ensure that this discrete set of rules be revised in line with the decision of the Specialist Chamber of the Constitutional Court. The entire Rules will therefore enter into force once the Constitutional Court has finally determined that all Rules are in compliance with Chapter II of the Constitution,” said President Trendafilova, KTV reported.

Adoption of the Rules paves the way for the first indictments of Specialist Chambers, KTV concluded.

KHL postpones blocking of the road in vicinity of Visoki Decani Monastery

(KTV)

Deçan/Decane branch of Kosovo Historians League (KHL) “Ali Hadri”, through a press release issued, announced that it has temporarily postponed its planned blockade of the road in vicinity of Deçan/Decane Monastery scheduled for Friday, KTV portal reported.

According to the press release, the postponement happened because the Head of KHL, Selim Lokaj resigned on Wednesday.

Lokaj’s resignation, according to KHL, happened “after serious pressure from external factors, respectively from the international factors in Prishtinë/Pristina and the heavy pressure by the local factor.”

Kosovo sliding towards dictatorship, say civil society representatives

(KTV)

Representatives of civil society warn that if the draft law on amending the Criminal Code is adopted, then Kosovo can slide toward dictatorship said representatives of civil society, who despite being member of the working commission for the amendment of the Criminal Code, do not know who proposed the disputed Article 134.

The Commission established by Kosovo President Hashim Thaçi on amendment of the Criminal Code and Criminal procedure Code aims at criminalising defamation and slander.

KTV got hold of the first version of Criminal Code draft law drafted by the Ministry of Justice.

“Whosoever publicly, in a meeting or through the dissemination of written materials defames a constitutional organ, the President, Assembly, Government, Constitutional Court or one of their members, shall be liable to imprisonment from three months to five years,” reads article 134 of the draft-law.

Vetëvendosje MP, Albulena Haxhiu, who leads the Assembly Legislation Committee, said that she will not vote such amendments. According to her, these changes are introduced to directly eliminate political opponents.

Draft law also stipulates imprisonment for anyone who publicly defames the “Republic of Kosovo’ or its constitutional order by insulting the colours, the flag, coat of arms or the anthem.

Following numerous reactions to changes in the new Criminal Code, the Ministry of Justice has reacted regarding the review process of Criminal Code and the Criminal Procedure Code,

Through a press release issued, the Ministry of Justice has described its work in drafting the Criminal Code and the Criminal Procedure Code based on the most advanced models of European Union countries. However, the Justice Ministry clarifies, that currently all these changes are only proposals while the working group will decide for including or not in the final draft.

LDK against early elections

(KTV)

The LDK remained alone in the debate as to whether early elections should be held or the coalition should complete its full mandate, KTV reported.

While PDK in many occasions mentioned the option of early elections, LDK claims that there are no indications for the break-up of the coalition.

On the other hand, the President of Kosovo, Hashim Thaçi, said he respects country’s Constitution when it comes to the possibility of extraordinary elections.

“As the country President, I work according to the Constitution, not according to policies of political parties, of any party; therefore I feel the legal and political obligation to invite European observers to be prepared for local elections. As far as the possibility of general elections is concerned, I respect country’s Constitution, while it is at the will of parties if they want early elections.”

In the meantime, Bajram Gecaj, advisor to Kosovo Prime Minister, told KTV Interaktiv show that the ruling coalition will not break-up before concluding its mandate.

Opposition parties, on the other hand, continuously call for early elections.

Will Kosovo reapply for UNESCO membership this year?

(RTK2)

In November 2015, Kosovo’s admission in UNESCO was rejected.  It is still not clear if Kosovo respective bodies will reapply for admission in UNESCO this year.  Kosovo President Hashim Thaçi in many occasions announced, that in the coming period Kosovo will try to join different international organisations, including UNESCO.

Political analyst, Fadil Lepaja considers that Kosovo is close to join UNESCO.

“The Serbian government should be committed equally as the Government of Kosovo for the admission of Kosovo to UNESCO because this is at the interests of Serbs in Kosovo. It is at the interest of cultural heritage which belongs to all citizens. I believe that Kosovo’s membership in UNESCO is unavoidable is just a matter of numbers when this will happen,” said Lepaja.

On the other hand, the journalist and writer Zivojin Rakocevic expressed his concern that the admission of Kosovo into UNESCO would only harm Serbian cultural heritage in Kosovo.

“It is certain that this is not the heritage of Kosovo and it is certain that Kosovo has nothing to do with it, “said Rakocevic.

Political analyst, Igor Zlatojev considers the struggle over the admission to UNESCO actually as fight about the sovereignty between Kosovo and Serbia rather than an issue of culture or religious heritage.  He said that Belgrade is acting wrongly on this issue as, according to Zlatojev, Kosovo will win at the end.

“Kosovo as someone who has the full support of the West has no need for compromises and therefore is only waiting for its moment. If at the next vote Russian Federation vetoes Kosovo’s membership, the time will come when Russia will not veto it anymore, “said Igor Zlatojev.

He said that Belgrade should find creative proposals and solutions in order to achieve to preserve some of its interests in Kosovo.

Kosovo Bar Association vs. Government

(Summary of RTK1 – Betimi për Drejtësi show)

RTK “Betimi për Drejtësi” show tackled on Wednesday the suspension by the Government of Kosovo of the Regulation of Kosovo Bar Association (KBA) for appointment of lawyers ex officio.  KBA last year signed a Memorandum of Understanding with justice institutions and issued a Regulation establishing a mechanism through which the appointment of lawyers ex officio is regulated. This MoU would ensure transparency and fairness in ex officio appointments with public expenses in compliance with international best practices. As a result of this MoU, on 30 June 2016 KBA adopted a Regulation for the appointment of ex officio lawyers and provision of free legal aid. This Regulation stipulated the criteria and the procedures for engagement of ex officio lawyers.

But KBA’s Regulation provided limitations to new lawyers in their potential ex officio appointments at the Serious Crime Departments. A group of 45 lawyers filed a complaint about this Regulation, considering that the limitations is illegal and violates the rights of new lawyers. Therefore they have sued KBA at the Court.

The Regulation stipulates that all lawyers who have less than three years of experience as: lawyers, prosecutor or judge will represent defendants in all the phases of criminal procedures  but in levels of general departments in prosecution and courts and offer free legal aid.

While all other lawyers who have more than three years of experience as lawyers, prosecutor or judge are allowed to represent defendants in all criminal proceeding phases in any level of courts and prosecution, including Department for Minors and Serious Crime Departments.

This mechanism was established with the support of the Organisation for Security and Co-operation in Europe (OSCE).

After this Regulation entered into power, the Head of the OSCE Mission in Kosovo, Jan Braathu considered the establishment of this mechanism as very positive.

“The OSCE Mission in Kosovo has a long history of helping to ensure the independence, impartiality and accountability of the justice system. The OSCE regularly monitors and reports on the work of judiciary, work of the prosecution, prosecutorial service and advocates as well. We assess whether this work is in compliance with international human rights standards and rule of law standards. And we engage in activities in order to encourage the improvement of the performance of the justice sector. We do it for Kosovo; it’s not a theoretical exercise. The OSCE is monitoring all seven regions of Kosovo, making it the most comprehensive court monitoring conducted in Kosovo. The information we gathered from this work, helps direct projects aimed at addressing the gaps. For example, it was through this kind of monitoring, the OSCE observed gaps in the provision of free legal representation to defendants who cannot afford a legal counsel themselves.  In April of this year a Memorandum of Understanding was signed between the Kosovo Police, Kosovo Prosecutorial Council, Kosovo Judicial Council and the Kosovo Bar Association for the establishment of a free criminal defence coordination mechanism. This mechanism has been shown to be effective, efficient and it has improved the issues caused by the lack of legal representation. And I commend all of you, and the Kosovo Bar Association for their engagement in this initiative,” said Ambassador Braathu during a conference held in 2016.

However, out of 700 lawyers registered at KBA, 45 lawyers opposed the Regulation, considering it as illegal.  They filed a lawsuit at the Basic Court in Prishtinë/Pristina, requesting interim measures, but the Court decided that the Regulation should remain into force pending the final decision. But, Ministry of Justice was not convinced by this decision and proposed to the Government of Kosovo to suspend this Regulation. On its 142th meeting, Kosovo Government decided to suspend it, pending the final decision of the court.   KBA considered the decision as a direct interference in KBA’s work and as interference in the independent judiciary.

Following the suspension, Chairman of Kosovo Bar Association, Osman Havolli harshly criticized the Government for its interference. He emphasized that the MoU was implemented with the assistance and contribution of international partners, in particular the Organization for Security and Co-operation in Europe (OSCE).  He said that this suspension will cause unforeseen damages to Kosovo judiciary and called to the Government to withdraw the suspension.

Meanwhile, lawyer Naim Rudari says that this regulation turns lawyers into interns, stressing that KBA has no right to categorize lawyers by experience. He also criticized KBA for not carrying out any performance review of ex officio lawyers.  Additionally, he complained about one of the articles of the Regulation, which obliges lawyers appointed ex officio, to pay 2 % of their fee to KBA.

Ministry of Justice also justified its request for suspension of this regulation, saying that it does limit new lawyers in their ex officio appointments and therefore requested its suspension.

OSCE, on the other hand, through a written response to RTK, assessed the established mechanism for the appointment of lawyers ex officio.

“It is the government’s responsibility to supervise the lawfulness of general legal acts of the Kosovo Bar Association (KBA) and the Kosovo Government is authorized to suspend the application of an act until the competent court makes a decision on it, as per article 44 of the Law on the Bar. However, since representatives, of the KBA, Kosovo Judicial Council (KJC), Kosovo Prosecutorial Council (KPC) and the Kosovo Police all agreed that the Regulation conformed with the law, and since the government has not indicated in what way the regulation is in conflict with the law, or whether it consulted with the KBA, KJC, KPC or Kosovo Police, analysis of the Government’s motives or reasoning cannot be complete.

The OSCE believes that the Regulation was a positive step forward and hopes that the Government will soon receive additional judicial assurances of this and on that basis reinstate the important free legal aid mechanism. The Kosovo legal framework and international law speak directly to this issue.  Article of the Constitution provides that everyone charged with a criminal offense shall enjoy the right to have assistance of free legal counsel. But ‘free legal counsel” is more than just an individual with a law degree. The principle of equality means that the procedural conditions at trial and sentencing must be the same for all parties. It calls for a ‘fair balance’ between the parties, requiring that the parties should be able to present their case under conditions that do not place them at a substantial disadvantage vis-à-vis the opponent.

The European Court of Human Rights has emphasized that the right to legal assistance in a criminal proceeding is much more than a right to the simple appointment of legal counsel on behalf of an accused person. Legal assistance must be practical and effective in order to provide an adequate defence.

The Law on State Prosecutor at Article 19.1.6 requires that a candidate to be appointed as a State Prosecutor must have at least three (3) of legal field experience. The principle of equality requires that free legal counsel must have comparable experience. The KBA’s previous regulation provided for equality; suspension of that regulation gives advantages to the prosecutor,” reads the OSCE’s response to RTK.

Nevertheless, the disagreement between the Government and KBA continues, while the 45 lawyers have challenged the regulation at the court and are confident that they will win, ‘Betimi për Drejtësi’ show concluded.