During the 102nd session of the Rose-Roth Seminar organized by the NATO Parliamentary Assembly in cooperation with the Assembly of Kosovo, EULEX’s Chief of Case Monitoring Unit, Hubert van Eck Koster spoke along the Minister of Justice, Albulena Haxhiu in the session that tackled the topic “Strengthening the Rule of Law and Combatting Corruption”.
Read his full speech here (check against delivery):

Unfortunately, Ambassador Wigemark is in Brussels for work obligations and therefore he asked me to replace him, as the Head of the Case Monitoring Unit in EULEX.

Before speaking more about the Rule of Law, I would like to briefly explain the role of EULEX, The EU Rule of Law Mission in Kosovo. The unique position of EULEX until 2018 was that it had executive competencies and powers in the Kosovo judiciary with its own prosecutors and judges.  These executive powers in the judiciary ceased in 2018 after which all ongoing EULEX investigations and trials were transferred to the Kosovo rule-of-law institutions.
 
Currently EULEX implements its mandate through two Pillars, an Operations Support and a Monitoring Pillar. The Operations Support Pillar has a limited residual capability as a second security responder in Kosovo. EULEX also supports the Kosovo Police in the field of international police cooperation by facilitating the exchange of information between the Kosovo Police and Interpol, Europol and as well the Serbian Ministry of Interior. In addition, EULEX experts continue to work together with counterparts at the Institute of Forensic Medicine to determine the fate of missing persons.  The Monitoring Pillar on the other hand has been mandated by the EU Member States to monitor the judiciary, with a specific focus on the entire chain of criminal justice.

 This is conducted by the Case Monitoring Unit, which monitors investigations (both police and prosecution) and trials and as well the Correctional Unit which monitors and advises the Correctional Service. Once per year EULEX publishes its findings and recommendations, in close cooperation with local counterparts, in a public report. Let me share with you some of our key findings:

-As a more general observation, the justice system appears to be still rather inefficient leading to excessively long trial procedures. One of the causes for this are the many monitored so called unproductive court hearings. These are hearings which are immediately adjourned and in which therefore no procedural steps are made due to -for example- the absence of a judge, prosecutor, lawyer or defendant. Often such unproductive hearings could be avoided by timely informing all parties in advance.  

-Another cause is the monitored excessive and unjustified intervals between court sessions. In Kosovo it is common practice for the courts not to schedule all the hearings from the beginning of the trial. On the contrary, in many cases the date of the future hearings is scheduled after each court session. We believe that there is much to gain in keeping the main trial as concise as possible. For instance, the parties and trial panel would need less preparation before each session, the examination of parties, witnesses and experts could be more coherent, and overall, there would be less need of repeating actions in the proceedings.  

-A third reason for the observed long trial procedures concerns the fact that court proceedings are not audio- or video-recorded, but rather in writing, often verbatim. This results not only in prolonged trial proceedings but has as well a negative effect on the quality of the testimonies as it puts an additional strain on parties and witnesses, specifically vulnerable witnesses, as they are not able to provide testimonies in one coherent flow.
 
In addition to these mentioned causes leading to long trial procedures I would like to highlight some more specific findings from EULEX’s monitoring:

• The first concerns the overuse of detention on remand, also called pre-trial detention,and the excessive length of detention on remand. Detention on remand is one of the several measures provided by the Criminal Procedural Code, mainly to ensure the presence of the defendant during the investigation and trial. Since detention on remand implies a severe limitation on the fundamental right to liberty, this measure should be applied only as a last resort and be imposed for the shortest possible time. However, EULEX monitored that detention on remand is often being applied systematically without proper substantiation and it carries, whether intended or not, a punitive effect which is not in line with fair trial standards. In addition, EULEX identified as well the excessive length of detention remand as a serious concern. In 2021, there were 37 cases of persons being in detention on remand for 2 years or more, with examples of 4 persons having been in detention for respectively 6,7,9 and even 12 years, which causes as well serious concerns from a human rights fair trial perspective. And in addition, an increased number of former detainees have found their way to court demanding monetary compensation and therefore it also composes a financial risk for the judicial system.
  


• Another finding I would like to highlight is the retrial policy. It was monitored that the Court of Appeals has made it a common practice to send a relatively large number of cases back to the Basic Courts for retrial, despite the notion that the instrument of retrial should only be applied as an exception. The reason for this is that a retrial affects the rights of the accused to a fair trial within a reasonable time. As a side note, EULEX identified that the trend of sending many cases for retrial is another cause for the previous mentioned concern on the excessive long periods of detention on remand. And also, these retrials often concern high profile trials.

A related concern that EULEX monitored is the practice of the Basic Courts to allocate cases that are sent for retrial back to the same panel of judges which initially handled the case at the Basic Court. While the Kosovo Judicial Council (KJC) argued that this is justified for reasons of efficiency, EULEX believes that this practise has human rights implications. It has indeed been monitored that such retrial proceedings take place considerable faster as both the parties and the court are well familiarised with the case. Our concern is that such proceedings lack the thoroughness or completeness required of a retrial. More importantly, the Basic Court Judges are presented with an ethical dilemma of adjudicating based on the same, or only slightly changed, factual evidence. Ultimately, they have to re-evaluate their own previous decisions which can raise the question of their impartiality. In addition, we monitored that often the parties whose appeals had been granted were left in disbelief in the fairness of the new proceedings, assuming that it is unlikely that the same judge or panel of judges would come to an opposite conclusion.
 

• A concerning finding from the period when EULEX initiated its monitoring back in 2018 was that many high-profile cases were allocated to the same panel of judges, despite the notion that cases should be assigned based on a blind draw. However, the recent introduction of the Automatic Case Assignment module, as part of the overarching Case Management Information System, has been successful as case allocation can hardly been tempered with anymore.  


• Another positive observation is how the entire chain of criminal justice in Kosovo has been dealing with terrorism cases, with good cooperation observed between the Kosovo Police and the Special Prosecution Office. On 17 July 2021, Kosovo repatriated 11 Kosovans from Syria. Out of these 11 individuals, six are men, one is a woman and four are children. Seven indictments were filed by the Special Prosecution in November and December against all adults. They were charged with ‘participation in a terrorist group’ for travelling to Syria and join ISIS, and already by March 2022 all cases had been finalized in the first instance at the Special Department of the Basic Court Pristina. All were in the end found guilty of participation in a terrorist group and the men were sentenced to imprisonment. These cases have been handled efficiently by first the Special Prosecution Office and then the Special Department of Basic Court Pristina. No significant delays were observed, which is of specific importance given that most of the defendants were in detention.  

Some other positive developments I would like to highlight is that since beginning of this year the percentage of monitored unproductive hearings has reduced significantly.  Also, we were informed that the Chair of the Kosovo Judicial Council is engaged in drafting guidelines on how to improve the scheduling of court trials.
 
Moreover, I would like to highlight how the current Chair of KJC has really been active recently in making genuine efforts with the aim to make the judicial system more transparent and accountable. For example, all KJC sessions are live streamed, something that is actually not happening in most of our own countries. Another recent initiative of the KJC is the establishment of a new Commission under the wings of the Supreme Court which is aimed at enhancing the efficiency of the court system. It will for example look into how cases should be prioritised by the courts and also it will look at how to improve the norm system of judges. This concerns a norm of how many cases judges should process in a given period and which will include in the future as well a kind of weighing system, meaning that complex cases would weigh more than less complex cases which is not the case now. The KJC has recently also ensured that almost all transferred former EULEX are being processed, which until recently was not the case.

Also, I would like to say something about the handling of corruption cases.
 
To start with the work of the Kosovo Police (KP), one of the main bodies in charge of combatting corruption is the so-called Special Investigation Unit (SIU). There was an attempt in 2019 to shut it down by the previous government, but after a joint demarche from the international community this was reverted. However, to date the SIU is still under threat as it does not have a legal basis which will hopefully be solved as part of the upcoming police reform. An additional concern is that there is no clear demarcation between the work of the SIU and the KP Directorate of Economic Crimes and Corruption, which is also mandated to investigatecorruption cases.  

In terms of the prosecution, a positive development has been that within the Special Prosecution Office a special department on corruption and financial crimes has been established, while following an Exchange of Letters between the KP SIU and this department in the Special Prosecution Office, cooperation improved. However, a well-planned strategy on presenting complex corruption cases in court seems often lacking. Also, financial investigations are still weak, including money laundering investigations.  

Concerning the courts, there have been only very few final and binding guilty judgments in high-profile corruption cases with many cases sent for retrial or with acquittals or in case of a guilty judgment often with low sentencing.  

Moreover, the tool of sequestration and confiscation as one of the most important tools against corruption and organised crime, is not sufficiently applied.   The sequestration of assets concerns the seizure of property during the investigation, while confiscation concerns the permanent seizure of property after a final judgment of the court.  This means that final confiscation depends on the courts rendering a final judgment. However, as mentioned, final judgements, especially in high-profile cases, are still rare, and therefore the applicability of confiscation is scarce unfortunately.

As a last positive remark I would like to highlight that under the current government, which has a strong focus on fighting corruption, and as also highlighted already by Minister Haxhiu, several important pieces of relevant legislation have been adopted recently by the Kosovo Assembly: the Law on the Agency for Prevention Corruption, the Law on Declaration, Origin and Control of Assets and Gifts, the amended Criminal Procedural Code and the Amended Law on Management of Sequestrated and Confiscated Assets.

Another relevant legal initiative which is pending adoption of the before the Kosovo assembly is the draft law on civil confiscation. What is also commendable is that the Kosovo government asked for several important draft laws the opinion of the Venice Commission and that it has incorporated the Istanbul Convention in the Kosovo constitution.

Some of the highlighted concerns mentioned before could be addressed by these new pieces of legislation. For example, the amended Criminal Procedure Code provisions should lead to less retrials and the amended law on Management of Sequestrated and Confiscated assets should lead to easier procedures in applying these important tools.