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

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

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

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

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

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

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

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

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) ‏ 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 Insufficiently resourced legal aid system Unsatisfactory level of professionalism among lawyers in judicial proceedings Unsatisfactory level of professionalism among lawyers in judicial proceedings

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

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

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

Access to justice and minority communities Court Liaison Offices not fully operationalized 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: 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? Kosovo Serb IDP - Kosovo Property Agency offices closure in Serbia – access to documents? RAE - civil status documents - access to LA? RAE - civil status documents - access to LA?

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

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 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) ‏ 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 Missing persons: Human remains of missing persons were identified and returned to families

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

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

Questions?