NINTH ASSESSMENT OF THE SITUATION OF ETHNIC MINORITIES IN KOSOVO
(Period covering September 2001 to April 2002)
- Joint OSCE / UNHCR document -
ACCESS TO JUSTICE
25. Access to the judicial system is a special type of access to an essential service, of growing importance to all minorities. Minorities’ treatment by the criminal justice system, both as defendants and as victims, is a very important part of security – only fair and public trials of suspected perpetrators of inter-ethnic crime can ensure the rule of law. Of equal importance is access to civil justice. The legal system should provide effective remedies to many of the key problems faced by minorities, including discrimination and property issues, so it is vital that minorities are able to use a civil justice system that meets their needs and enforces remedies. Minorities face similar problems in accessing both parts of the justice system.
Physical access to courts
26. The biggest problem of access to court for certain minority groups is physical access. In civil cases, minorities must be able to access the court to lodge their claims and to appear as claimants, while in criminal matters, minorities need to be present in court as witnesses or defendants. All minorities using the justice system need to have access to lawyers and minority court staff. The key issue affecting physical access is freedom of movement, which varies from group to group and region to region. For example, some minority groups, such as Ashkaelia and Egyptians in Prizren and Pejë/Pec regions, and members of all minorities in Kamenicë/Kamenica, have experienced improvements in their ability to move freely within the municipal town centres and thus have been able to physically access the courts. Other groups such as Kosovo Serbs in Rahovec/Orahovac and in the small enclaves in central Kosovo, and Kosovo Albanians in northern Kosovo, have only limited freedom of movement and therefore need assistance (e.g. escorts) to get to the court buildings.
27. The response of the authorities has varied. A bus service goes from south Mitrovicë/Mitrovica to the court in the north, but this still creates problems for Kosovo Albanians who are in a minority situation in the north, who must first get to the Albanian south. One problem is shown by the case of two Serb employees of the court in Rahovec/Orahovac. Employed in March 2001, they have not been able to access work (and therefore have not been paid) due to their lack of freedom of movement and the lack of an escort service. This appears to be due to two problems – first that neither KFOR nor UNMIK Police were able to agree on an escort service with UNMIK, and budget problems in the hiring of a vehicle. [1] In the Serb enclave of Gorazdevac/Gorazhdec, (Pejë/Pec) an UNMIK office receives legal complaints from the Serbs and submits these to the court on their behalf. There have been no special measures for the Serbs in Štrpce/Shtërpcë, who have no access to any UNMIK court (officially they fall under Ferizaj/Uroševac courts but have no freedom of movement to get there). Although before 1999, the Ferizaj/Uroševac court had an office in Štrpce/Shtërpcë, UNMIK has not reopened it and currently has not provided for it in the budget.
Employment in courts
28. One indicator of how minorities are able to access courts in general is how many are willing and able to work in the courts. As of April 2002, there were 343 judges and prosecutors and 456 lay judges appointed to the 55 courts in Kosovo. Out of the 343 judges and prosecutors, 16 (4.71%) were Kosovo Serbs (only four of whom were actually working), seven (2.06%) Turks, 12 (3.53%) Bosniaks (of whom only 10 were working) and two (0.59%) Roma. Albanian judges represent 89.11% of judges and prosecutors. However, given that only four Serbs and 10 Bosniaks actually assumed their appointments, the percentages for these two ethnic groups can be more accurately expressed as 1.18% Serb and 2.9% Bosniak.
29. The relatively low number of minorities working within the judicial system, and the fact that some appointees are actually not performing their functions, can be attributed to several problems. The main problems are the lack of physical access and freedom of movement, the continued parallel Serbian court system, and discrimination, including the general perception that minority judges are only needed for cases involving members of minorities. One example of the last-mentioned cause is the case of two Kosovo Serb lay-judges in Rahovec/Orahovac. Appointed in 2001, they have never been asked to sit on a panel. Court staff stated that the lay-judges had not yet been called because there had been no cases involving Kosovo Serbs in the court.
Parallel structures
30. One of the key problems that particularly affects Kosovo Serbs remains the existence of parallel courts, which are widespread. For example there are parallel courts for Mitrovicë/Mitrovica and the northern Serb municipalities, there is the “Municipal Court of Uroševac” based in Leskovac, Serbia proper, (which also nominally covers Štrpce/Shtërpcë), and the “Municipal Court of Lipjan/Lipljan,” located in Niš, Serbia proper, but with a judge based in Lipjan/Lipljan municipality itself. The staff, including the judges, of such courts are still paid by the Belgrade authorities, who are said to have put pressure on the Serb judges initially appointed to the UNMIK Kosovo courts to resign. Such courts are still used by Serbs to attempt to resolve disputes including property, registration and, in the north, criminal cases. They can, in theory, attempt to deal with both criminal and civil matters, although the courts outside the northern municipalities do not address criminal issues, having no actual power of enforcement. The parallel courts themselves are not legitimate in Kosovo, not being recognised by UNMIK, but UNMIK has not taken any action to end their activities.
31. These parallel courts are very problematic for several reasons. Their existence, and continued use, is a sign that Serbs in Kosovo and Belgrade do not accept, trust or use the UNMIK courts (which do have enforcement powers). Moreover, the parallel courts themselves do not bring any benefit to the Kosovo Serb community, because, having no power of enforcement, they can not provide any effective remedy to any dispute, and can merely complicate matters such as property disputes. In criminal cases, Serbs in the northern municipalities run the risk of suffering double jeopardy, if they are tried for the same offence both by a parallel court, and then by an UNMIK court that will not recognise the decision of the parallel court. This has in fact happened to a Kosovo Serb from Zubin Potok, who was detained for 16 months in Serbia proper, tried and acquitted for murder by the parallel court for Mitrovicë/Mitrovica, and then arrested and tried again by the UNMIK Mitrovicë/Mitrovica District Court. By not using the UNMIK courts, which have the power of enforcement, Kosovo Serbs are harming their own interests in relation to the proper administration of justice.
Lawyers and languages
32. Access to a legal system also means access to legal advice. Again, this is a particular problem for minorities who have limited freedom of movement. Whilst persons have the right under international law (directly applicable in Kosovo) to effective legal assistance, this does not necessarily mean that they have the right to a lawyer of their own ethnic community, although issues of language may make this desirable. It is encouraging that there seem to be relatively few problems in minority lawyers accessing the judicial system, beyond difficulties with freedom of movement. Indeed a Serb lawyer in Mitrovicë/Mitrovica stated that neither he nor his Serb colleagues had problems in the UNMIK courts. Nevertheless, there are still no Roma lawyers in Kosovo, and only a few Serb lawyers working within the system.
33. Language issues in the judicial system in general are still a problem. Translation of UNMIK Regulations into Serbian and Albanian tends to be slow, making it difficult for both majority and minority defendants/parties/lawyers to understand and use the law.
Discrimination
34. Monitoring of access within the justice system suggests that there is less evidence of direct discrimination within the justice system than has been identified in the past. The clearest example of previous discrimination came with the treatment of Serbs accused of war and ethnic crimes, who were tried in 2000 at a time of heightened emotions. OSCE’s concerns about these trials, as set out in its reports on the criminal justice system, have been addressed by the use of international judges, who, together with locals, have reheard all the cases. In the few civil cases involving minorities that have been monitored, there is no evidence of any discrimination in the final rulings of the court. In substantiation, one of the few Serb lawyers practising in the regular court administration stated that he had not experienced discrimination in the system.
Criminal justice
35. During the reporting period, UNMIK Police and KPS made important and notable advances in law enforcement and fighting crime, most specifically in combating illegal activities such as evasion of customs duties, smuggling, illegal possession of weapons, burglary, theft of vehicles and other goods, and assaults linked to personal or family disputes between persons of the same ethnicity. UNMIK Police has found that reporting of “normal” crimes has increased, as has the ability of the law enforcement and judicial officials in identifying, arresting and trying perpetrators of these crimes. There have been relatively fewer improvements in the case of ethnically-motivated crime, although there has been progress. It is widely accepted that the vast majority of serious inter-ethnic crimes which have taken place over the last two and a half years have resulted neither in identification nor arrest of suspected perpetrators, and that most ethnic crimes committed in 1999 and 2000 have not been prosecuted. [2] But focusing on the most recent period, there have been improvements in arrest and prosecutions of ethnically-motivated crimes perpetrated in 2001. As a result, there have been a number of successful prosecutions in serious cases of ethnically-based violence, including murder. For example, on 12 December 2001 a Kosovo Albanian was convicted of illegal possession of weapons and causing general danger in connection with the planting of a bomb in a store in Gjilan/Gnjilane in March 2001 (the store was owned by an Albanian, but results of the police investigation suggest that the victim was targeted because the storekeeper did business with Serbs). Similarly, three Kosovo Albanians were convicted of murder on 4 February 2002, for the drive-by shooting of a Serb near Kamenicë/Kamenica in June 2001. During this period, the trial was also ongoing of two Kosovo Albanians for a shooting incident in Viti/Vitina on 30 April 2001, in which a Serb was killed. On 12 April 2002, the defendants were convicted of both the murder of the Serb, and grave bodily injury of an Albanian bystander. In all these cases the court panels consisted of two international and one local judge.
36. Despite this, given the perceived poor record of arrests and prosecutions during the bulk of the previous two years, the belief among the minority population that few perpetrators of ethnically-motivated attacks are ever apprehended persists, which continues to reinforce the fears of minorities for their personal security. Continued under-investigation and failure to prosecute less serious crimes further strengthens the conviction that impunity prevails in Kosovo for inter-ethnic violence, resulting in many minorities feeling unmotivated to report ongoing incidents. Members of minority communities have told that they “do not see the point” in continuing to report to law enforcement authorities the less serious but unrelenting forms of harassment suffered, especially in the case where stone-throwing or other harassment is perpetrated by children and young people.
37. Any ethnic bias in the criminal justice system, whether intended or not, means that minorities accused of crimes will not receive a fair trial. As stated above, in 2000 there were many concerns about the fairness of the trials of war crimes and other serious crimes alleged against Kosovo Serbs for incidents in 1998-1999. These concerns regarding fair trials have largely been addressed by the greater involvement of international judges in such cases, both in conducting current trials, and reviewing past cases where there are allegations of bias. However, particular problems remain. For example, Serbs in Gracanica/Gracanicë, facing trials in Prishtinë/Priština, are still having problems in accessing legal advice, in securing escorts to the Minor Offences Court and in security inside this Court.
38. A significant number of district court trials are delayed or court investigations hampered in cases involving Kosovo Serb witnesses. There are considerable logistical problems in notifying these witnesses, since most have left Kosovo and cannot be traced in Serbia proper, and those who are still in Kosovo refuse to attend court hearings without guarantees as to their safety. The absence of important witnesses in criminal court proceedings brings about serious delays which impact the right of the defendants, who are normally also members of a minority community, to be tried within a reasonable amount of time. [3] There have been, during this period, a number of convictions (including for war crimes) involving Kosovo Serb defendants, that were sent back from the Supreme Court for retrials in the first instance court, because facts had not been established properly since important witnesses in Serbia proper were not called. As an illustration: the case of a Kosovo Serb defendant sentenced to 12 years and 6 months imprisonment, for an ethnically-motivated murder, was sent back to the first instance court for retrial by the Supreme Court in April 2001 because the key Serb witnesses had yet to be heard. During the course of the retrial, because of the non-appearance of witnesses the entire proceeding was delayed. The last session of the retrial, in mid-February 2002, was again postponed as the defence witnesses failed to appear, with the international presiding judge stating that “it will be the last possibility given to defence witnesses to be heard”. The outcome of the retrial is still unclear, more than 10 months after the decision for retrial. The general lack of witness support, assistance services, and protection mechanisms continue to be detrimental to court proceedings in such cases.
39. The lack of freedom of movement and need for escorts can cause particular problems for minority detainees. For example, one problem is the transport of Serb detainees who are released from detention back to their place of residence. In Gjilan/Gnjilane, both UNMIK Police and the court disclaimed responsibility for ensuring such transports, arguing that detainees should make transport arrangements with their families beforehand. This problem was eventually resolved by assistance provided by local Serb community structures for the transportation of released Serb detainees back to their homes as well as the promise of KFOR assistance.
40. A continuing widespread problem is access to family and legal visits for minority detainees. The right of detainees to have access to the outside world, meaning the right to communicate and to receive visits, is guaranteed both by domestic applicable law and international human rights instruments and it provides fundamental safeguards against human rights abuses. The actual possibility of visits from minority families or lawyers in areas without freedom of movement is dependent on the availability of the police or KFOR escorts, which often vary. Even where escorts are provided for Kosovo Serb defence lawyers in particular, minority defence counsels often have very limited time to see their clients and, consequently, the preparation of a proper and effective defence is jeopardised. Kosovo Albanian defence lawyers are facing identical difficulties to consult their clients and prepare defences for those detained in the northern part of Mitrovicë/Mitrovica.
Civil Justice
41. Civil justice can resolve some of the most serious problems affecting minorities, in particular discrimination, access to essential services and property issues. However, when looking at the use of civil justice, it has been found that minorities still rarely use the civil justice system, although the numbers may be increasing from a very low base. [4] Minorities have stated that this is due to a variety of reasons. Importantly, very few are aware or believe that the justice system can meet their needs. This can be due to lack of knowledge of the system, or the success it can have, or a belief, justified or not, that the system can never provide any effective remedies, either because it is unable, or that the persons within it will not assist minorities. Another reason is actual physical restrictions on access to courts. A final reason is the continued existence of parallel court structures, which are used by Kosovo Serbs despite their lack of capacity to enforce effective remedies, and the fact that, in using illegitimate structures, minorities effectively decrease direct pressure on the UNMIK judicial structures to accommodate their needs.
Remedies and special measures
42. There have been two major efforts specifically to address access of minorities to the justice system. The first has been the Norwegian Refugee Council’s Civil Rights Project (CRP) [5] to provide legal assistance to minorities. This work has been invaluable, being the only source of direct legal assistance for civil cases, allowing minorities to lodge and pursue cases, and also to negotiate settlements, for example, in employment disputes. Without such special programmes in place, most minorities would lack access to remedies due to lack of information and lack of freedom of movement in addition to lack of legal assistance. For example, in December 2001, an Ashkaelia man received a positive judgement in the Prishtinë/Priština municipal court for reinstatement of his pre-conflict job with KEK, as a result of CRP filing a legal action. CRP staff identified the case after encountering the plaintiff during a field visit in rural Podujevë/Podujevo municipality. The court found that KEK had wrongfully refused to reinstate the Ashkaelia employee. KEK acknowledged that the employee had come to the workplace in September 1999 to request his job back, but nonetheless argued that the defendant had failed to report to work before the legal deadline. The court rejected this argumentation, agreeing that the defendant, having notified KEK of his intention to work and lacking freedom of movement to safely travel to the workplace prior to the deadline due to his ethnicity, should have been reinstated. [6] This case highlights the critical importance of free legal aid programmes, which invest efforts in outreach to minorities who might otherwise not have access to effective remedies. [7]
At the end of 2001, and following the signature of the Common Document between UNMIK and Belgrade, the Department of Justice created the Judicial Integration Section (JIS) to focus on minority community access to the justice system. The JIS has three stated aims: the integration of minority judges and prosecutors into the courts; facilitating access to courts for minorities in enclaves and following up cases in the courts in which minorities are involved. This welcome development has brought attention to improving minority access at all levels, as well as promoting an integrated judicial system rather than one in which, for example, Serb judges only deal with Serbs. The JIS is still in the process of formation, but there remains an urgent need for UNMIK to tackle the parallel court structures in co-ordination with Belgrade authorities.
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[1] DOJ stated in April 2002 that a vehicle had been found and that the two persons should sign a new contract imminently.
[2] No specific figures on the percentage of inter-ethnic crime that has been successfully prosecuted are available. However, the high number of crimes affecting minorities reported to our organisations and to the police in 1999 and 2000, and still relatively few successful prosecutions, show that the majority of the previous crimes have not been prosecuted.
[3] As required by Article 6(1) ECHR and Article 14(1) of the ICCPR.
[4] In Mitrovicë/Mitrovica municipal court there were 38 civil cases recorded in 2001 where both parties were Serb (the majority being inheritance cases), and 14 cases where one party was Serb (the majority being property cases). The Serbs in Vushtrri/Vucitrn and Skenderaj/Srbica do not use the UNMIK civil courts at all, instead using the parallel courts or none.
[5] A UNHCR project funded largely by ECHO.
[6] The plaintiff has not yet been reinstated in the workplace because KEK is appealing the decision in district court.
[7] The European Agency for Reconstruction (EAR) is supporting a Kosovo-wide legal aid initiative, implemented by the Chamber of Attorneys of Kosovo. The EAR project aims at building a permanent local capacity by creating a legal aid structure providing free legal aid in civil matters for those who lack economic means. The project has as one of its goals to ensure that legal aid is accessible to all Kosovars regardless of ethnicity, and to this end, has established legal aid desks in Gracanica/Graçanicë and northern Kosovo. However, the project is less specialised in the area of minority outreach, while the NRC Civil Rights Project has as its core strategy overcoming the particular obstacles faced by minorities in accessing legal aid, and seeking remedies in civil court with particular attention to instances of discrimination.