21 February 2014
You feel you have been mistreated in the course of EULEX's implementation of its executive functions in Kosovo? Whom would you turn to? Is there anybody who would be prepared to hear you out and actually do something about your complaint?
Meet Magda Mierzewska, Presiding Member of the Human Rights Review Panel, HRRP, situated in the heart of Pristina. She may be able to help you. The panel which she chairs is an independent body, a kind of external watchdog. It was set up in 2010 to evaluate EULEX's adherence to international human rights norms and standards in the exercise of its executive functions. It is the first time, due to its executive mandate, that a Mission of the European Union is subject to such an oversight mechanism.
"Any person, organisation or group can file a complaint to us if they feel their human rights have been breached by EULEX", says Magda.
"If a citizen feels that EULEX police, customs officers or prosecutors have jeopardised their rights, we step in. The panel's duty is to establish the facts, determine the existence of human rights violations and then recommend the appropriate actions that can be applied to resolve the problem", Magda continues.
Once the HRRP determines or confirms that a violation has indeed occurred the findings will be shared with the Head of Mission, the complainant, and then be published on its website. In addition, those findings may include non-binding recommendations for action by the Head of EULEX to address and remedy the established human rights violations. This is a ground breaking development in international law - that next to states also international organisations which perform executive functions are held accountable for any violations of human rights. In this regard, the Panel not only remedies possible human rights violations of complainants, but also advances the transparency and credibility of EULEX as an international organisation that is measured against the very same standards it promotes.
However, the HRRP cannot solve all your problems.
"We receive many complaints about the length of the cases pending before Kosovo courts. Despite the much quoted legal maxim (attributed to 19th century British Prime Minister William Gladstone) 'Justice Delayed is Justice Denied', we are not empowered to help citizens in this respect, as our panel cannot interfere with judicial proceedings", Magda explains. She goes on to explain that HRRP has no competence to examine the work of Kosovo courts, or to act as appellate court because the courts are independent. However, if citizens feel their rights have been breached by Kosovo institutions, they are entitled to take their grievances to the Kosovo Constitutional Court.
"The Kosovo Constitutional Court takes on individual constitutional complaints. This is possible because the European Convention on the Protection of Human Rights is enshrined in the Kosovo Constitution. Not a lot of places in the world have this possibility", Magda stresses, adding that the Constitutional Court has a good record in applying the human rights standards in Kosovo.
"Kosovo's Ombudsman and Constitutional Court are institutions that deal with the human right violation complaints of citizens where local institutions are involved", she explains. "This is important, since Kosovo has not acquired the status of a universally recognised state and is not a member of Council of Europe. This means Kosovo citizens cannot complain to the European Court of Human Rights".
Magda has been working for years in Strasbourg as a Registry lawyer for the European Court of Human Rights. There she is tasked with drafting and preparing judgements and decisions that serve as a basis for the Court's judicial deliberations. Magda is one of the three international human rights experts who sits on the HRRP panel. She comes to Kosovo for regular panel sessions several times a year. The other two experts on the board are Mr Guénaël Mettraux and Ms Katja Dominic.
"I came to Kosovo for the first time in 2005. I liked being in Pristina and was fascinated with Balkan history. I returned to work for UNMIK's Human Rights Advisory Panel a couple of years later," Magda points out, adding that it was only natural for her to continue in a similar capacity on the HRRP.
As someone working for the Strasbourg Court, Magda says she is interested to know how human rights are applied in the real world. "One thing is to work for the highest human rights court in Europe; another is to see how the European Convention can be put into practice in order to improve lives of ordinary citizens, also here in Kosovo", Magda says.
She strongly encourages lawyers to never forget that the legal and technical aspects of their work may have a huge impact on people's lives.
Poland, where Magda originally comes from, is a post-communist country that has encountered its own judicial challenges. After forty years of the communist party shaping Poland's entire society, her country transformed into a functioning multi-party democracy.
"I took my judiciary exams during the period of martial law in Poland in the early eighties, but felt I did not want to become a judge within the one party system. I taught at the University instead. I was overwhelmed by being able to experience freedom when the change in my country finally took place in 1989", says Magda.
However, in comparison to Poland's peaceful transition, Kosovo's road to freedom was quite dramatic. "It was a traumatic experience for the entire society", Magda points out.
People in the region, according to Magda, are overwhelmed by a newly acquired sense of liberty. But liberation, Magda emphasizes, should go hand in hand with certain boundaries. The value of the rule of law is in its role as chief regulator of these new found freedoms for the common good of society..
"People think freedom means that everything should be allowed, which is absolutely not the case in a democratic society. It is the law which imposes limits on citizens and all public authorities alike", she points out.
After another busy day in the HRRP office, Magda is heading back to Strasbourg. She will be back in Pristina in the spring to preside over yet another session of the HPPR panel.