Access to Justice in Kosovo

1. Access to Justice in Kosovo Theodora Krumova Human Rights Expert Human Rights and Gender Office EULEX Kosovo

2. Contents • Access to justice in Kosovo: Justice providers in Kosovo • Challenges and shortcomings identified • Role and mandate of EULEX Justice component • Role and mandate of EULEX HRGO

3. Existing system, mechanisms and bodies in Kosovo • Major Judicial System reform in Kosovo • legislative reform – new laws on Courts (structure), Prosecution, KJC • Selection, vetting and appointment of new judges and prosecutors process • Kosovo Judicial Council (KJC) – responsible for organizing the judicial system (currently not functional) • Courts and Prosecutorial services independent yet MoJ has a lead role in budgeting, planning and capacity development

4. Existing system, mechanisms and bodies in Kosovo • The judiciary (Courts and Public Prosecutors) • Structural issues; lack of updated internal regulations • Results in an enormous case backlog – thousands of cases pending (civil) • Public prosecution – cooperation with KPS in conducting investigations; judicial police issue; lack of clear division of competencies with the KPS and the courts.

5. Latest developments • Constitutional Court appointments • Constitutional Court Secretariat • Possibility for constitutional complaint (by individuals) • General concern re appointment processes – ensuring fair representation of minority communities

6. Service providers: Ministry of Justice • Attempts to facilitate access to justice of women, minority communities, elderly, children, poor – encouragement to use these services! • MoJ Department of Access to Justice: • 1) Victims Protection Division (Regional Victims Advocacy Offices for domestic violence and trafficking victims) • 2) Judicial Integration Division (establishing Court Liaison Offices as a vehicle to integrate minority communities in the justice system)

7. Service providers • Kosovo Legal Aid system • Commission (Independent body) • Coordination Office • 5 Regional Bureaus • 5 Municipal Clinics (Gracanica, North Mitrovica, Dragash, Djakova and Ferizaj/Urosevac) – UNDP project • Chamber of Advocates involvement • NGOs partnership status

8. Access to justice: accountability mechanisms • Ombudsperson Institution of Kosovo (OIK) • Assembly vote to be held on 28 May (fifth attempt) • The successful candidate needs a majority of the votes or a minimum of 61 votes.      • UNMIK Human Rights Advisory Panel (HRAP) • EULEX – internal and external (work in progress)

9. Challenges to access to justice • Lack of coordination among institutions to ensure optimum use of existing resources for access to justice – e.g. Legal Aid system (mandates and budgets of Legal Aid, Victims Advocacy and KJC) • Insufficiently resourced legal aid system • Unsatisfactory level of professionalism among lawyers in judicial proceedings

10. Challenges to access to justice • Excessive duration of judicial proceedings (length of proceedings, numerous retrials) • Backlog of cases (especially property related) • Non-enforcement of court orders • High number of unexecuted court decisions

11. Challenges to access to justice • Failure to appoint a permanent Ombudsperson • Insufficient consideration of the OIK recommendations • Limited alternatives to judicial adjudication for provision of justice outside overburdened courts – e.g. mediation

12. Access to justice: Mitrovica North • Lack of functioning courts in the northern municipalities violates a number of human rights: • the right to fair trial; • access to justice; • public hearing and tribunal established by law; • right to protection of property; • to a determination of civil rights within a reasonable time; • to an effective remedy • Mutual lack of recognition – different structures – problems of effectiveness and access to justice

13. Access to justice and minority communities • Court Liaison Offices not fully operationalized • Ethnicity-based barriers in the legal system and in society at large that effectively fail to protect minority communities, displaced and returned persons: • Kosovo Serb IDP - Kosovo Property Agency offices closure in Serbia – access to documents? • RAE - civil status documents - access to LA?

14. EULEX JC activities and priority areas • MMA function • Executive function (inter-ethnic and war crimes) • EULEX Judges/Prosecutors Court team in Mitrovica North • Priority at the moment – pre-trial detentions and urgent criminal matters • One main trial has been finalized and another one is in progress

15. EULEX JC activities and priority areas • War crimes: EULEX took over UNMIK files; screening by en large completed; process is going to be unbiased ; strong executive mandate; 2 war crimes cases ended with convictions; new war crime investigations ongoing • Property: First interethnic property cases are being dealt with (PE region fraudulent property transactions) • Missing persons: Human remains of missing persons were identified and returned to families

16. EULEX HRGO role • Provision of services for the mission • Preventive role • Mainstreaming of human rights and gender equality in all aspects of EULEX mandate implementation • Reporting • Training • No individual complaints

17. EULEX HRGO role • Local legislation • Co-operation with local and international actors - relevant RoL institutions, NGOs, women’s groups, civil society and academic community • Advice and assistance to institutions

18. Questions?