Doubling the income of prosecutors and judges will not yield better results in the Kosovo judiciary. Doubling the number of staff, however, will bring Kosovo closer to the desperately needed improvements across the legal system.
Whoever forms the future government will face the task of resolving a series of fundamental issues in the functioning of Kosovo’s justice system.
During the tenure of the outgoing administration, a high number of ministers, Assembly members and mayors were charged by the Kosovo Prosecution on suspicion of committing criminal offences.
While numerous corruption indictments were filed, in the end, almost all were acquitted. Other scandals are coming to light every day, but the fear that history will be repeated and that officials accused of corruption will be acquitted again remains.
A pattern of corruption cases reaching their statute of limitations has been identified, meaning that the defendant cannot even be tried. This has happened even in cases selected by the Ministry of Justice in the ‘fight against organized crime and corruption,’ the success of which became a prerequisite for visa liberalization.
Even when convictions were issued, sentencing rates were inconsistent and criticized for being too short. Low punishments issued to convicted politicians have been accompanied by judges in certain instances even apologizing for convicting people considered as strongmen. Even today, the judiciary is failing to respect the obligation to confiscate any assets that are the proceeds of a crime committed, BIRN has discovered.
Despite this state of affairs, numerous ministers of justice have still bragged about the successes of the justice sector, including the most recent, Abelard Tahiri.
One of the most pressing issues to be solved is discrepancies in the allocation of funding for judicial bodies. A consistent failure to meet the budgetary requests of the Kosovo Prosecutorial Council and Kosovo Judicial Council is impeding the ability of these organizations not just to bring high profile corruption cases to a close, but also to meet the needs of people in Kosovo, who are facing between four and eight years to wait for their cases to be heard.
Those claiming to have had their workers’ rights violated and women demanding their right to property must wait years in order to attain their rights because of the huge backlog of cases in the judicial system.
Politicians in Kosovo have claimed that they do not exert any external pressure on the justice system, but last year we saw then-Prime Minister Ramush Haradinaj labeling prosecutor Elez Blakaj, who resigned and fled to the US in August 2018, “a chicken thief” while he was investigating the case of alleged fake war veterans’ lists, with Blakaj receiving numerous online threats during the course of the investigation.
Women reporting sexual harassment to the prosecution are called “wicked” by those who should be investigating and bringing perpetrators to justice. State prosecutor Rexhep Maqedonci was reported calling a woman’s sexual harassment claim “lies,” “disgraceful” and “blackmail” during the preliminary investigation phase of a case in March 2019.
In all this chaos, not a single judge or prosecutor was assessed as ‘poor’ or ‘insufficient’ in their performance evaluation in the last two years. On the contrary, all were assessed with ‘good,’ ‘very good’ or ‘excellent.’ The system isn’t just captured, it is rotten.
Each of the future members of the Kosovo Assembly, the prime minister and his cabinet members must do their best to remedy, advance and improve the legal infrastructure and its implementation by the police, prosecution and courts in the country.
Below, we reflect on the main challenges that the Kosovo justice system faces, and tasks that must be carried out by the decision-makers that emerge from the elections on October 6. The future government will not be able to fix everything within the justice sector, but there are measures that can be taken by future decision makers that we expect to see reflected in the parties’ political programs, and during the electoral campaign.
Lack of capacities
In 2018, there were 389 judges together with 1,478 support staff working in Kosovo, while courts in the country began 2019 with a total of around 222,000 unresolved cases.
The Court of Appeals in particular is in a critical state. 12,000 cases remain unresolved at the appeal stage, many of them civil cases. Most alarming is that some of these cases have been waiting since 2014 to be heard. The situation is similar at the Basic Court in Prishtina as well, which commenced 2018 with 70,000 unresolved cases.
Currently, each of the 28 judges at the Court of Appeals involved in adjudicating civil cases have been given a minimum of 700 cases each to process. This is a helpless situation. It would be impossible with such a large backlog for the court to respond satisfactorily to citizens’ right to a fair trial, and a trial that is concluded within a reasonable time.
If the Kosovo Judicial Council had received the budget it asked for, then it could have doubled the number of judges dealing with civil cases.
Hiring 28 new judges in the Court of Appeals would only cost the Kosovo budget about one million euros. Such an increase in capacities would solve many of the problems in the judiciary. The Court of Appeals would be able to cut in half the number of cases that are waiting to be heard and shorten the duration of time citizens have to wait for a decision.
While each minister in the government’s cabinet has an army of advisers and deputy ministers, the majority of judges and prosecutors in Kosovo still lack professional associates, financial advisers or field-specific experts of any kind.
Standing at a total of 197, there are an adequate number of prosecutors engaged in Kosovo, but they are assisted by only 58 professional associates and six financial experts who are charged with helping every single prosecutor.
This absurdly small number of financial experts is not only insufficient for the 197 prosecutors, they are not even enough for the Special Prosecution alone, where currently there are 15 prosecutors that have been allocated to investigate the highest profile corruption cases in the country.
The need for well-investigated and evidence-based indictments which are supported by this expertise is immediate. If the number of experts needs to increase from six to 50, this would cost the state budget no more than 1.5 million euros.
The (un-)approved budget for justice
Whoever takes responsibility of leading the country’s institutions has to increase financial support to the justice system and must significantly improve its infrastructure. Financial stability and the proper functioning of the Kosovo Judicial Council, KJC, and the Kosovo Prosecutorial Council, KPC, are the primary preconditions to the successful running of the entire justice system.
In total, the Judicial and Prosecutorial Councils have received 18 million euros less than they requested over the past three years. The majority of funds requested by the KJC which were not approved had been envisaged to be allocated to increasing the staff working in the courts.
The financial independence of judicial institutions, secured by the Kosovo Constitution, cannot come into question. Nonetheless, the method through which the KJC and KPC’s funding is administered is flawed.
The budgetary proposals of the KJC and the KPC are still channeled through the Ministry of Finance and then to the Kosovo Assembly, but the Council’s budgetary demands have not been fulfilled after making it through these channels. If the budget of an independent pillar of the government is not approved, we can assume that it is not in the government’s interest to ensure the full implementation of justice in the country.
In the past three years, the KPC was allocated roughly six million euros less than it requested from the Kosovo government. The KPC requested 13 million euros in 2017 with only nine million being approved. In 2018 only 12 million of the 14 million euros requested were allocated, while in 2019, 14.5 million of the 16 million euros the KPC asked for were approved.
The KJC has seen similar patterns for its budget.
In 2017, the KJC requested 27 million euros and received only 22 million, while in 2018 the Council requested 25 million euros and only 23.5 million euros were allocated. This year 33 million euros were requested, but the KJC was given 29.5 million euros.
Despite a consistent increase to the budget allocated to both, neither of the Councils ever received the planned and requested budget as per their demand.
The judiciary and the prosecution have not had their financial needs fulfilled. The number of prosecutors is sufficient, but the number of support staff across both arms of the legal system is clearly insufficient. The quality of prosecutors’ investigations is dependent on these resources and is greatly impacted by them.
The current budgeting practices in the justice system show that, while the financial independence of the judicial and prosecutorial system is guaranteed, for it to be implemented in practice, political will is also required, a will that cannot be measured by talking the talk, but rather by walking the walk. The practice of the government since 2017 has been to restrict the justice system, and not to strengthen it.
Improvement of legal infrastructure
The Criminal Procedure Code has not been amended since 2013, and the judicial system continues to function with no Civil Code at all. Other laws have been adopted in the meantime, and while these are a step forward, further improvement to Kosovo’s legal infrastructure is crucial.
Some basic laws have undergone qualitative changes in recent years, including the Criminal Code, the Law on Courts, the Law on the Disciplinary Liability of Judges and Prosecutors, the Law on the Protection of Whistleblowers, the Law on Extended Powers for Confiscation of Property and the Law on the Kosovo Judicial Council.
However, in order to make the big leap forward in combating corruption and organized crime, some of these laws still need to be improved, while some entirely new laws must also be drafted and passed.
The new Criminal Code extended its statutory limitation period, giving prosecutors more time to conduct investigations. It also set out a number of new offenses such as fraud in procurement, and punishment for those who retaliate against whistleblowers. Most importantly, sentencing rules were amended allowing for further prison time for certain crimes. While the penalties were increased, in practice, it must be ensured that these rules are fully implemented.
Resolution of cases
Of the 207 corruption cases resolved in the domestic courts in 2018, only 22 of them (11 per cent) resulted in a verdict with prison terms, while 81 cases (40 per cent) resulted in acquittal or dismissal.
This is an alarming finding on its own, but it is more shocking when you consider that these findings come in the same year that salaries of judges and prosecutors were increased.
While salaries grew, penalties for corruption convictions and the quality of investigations in these cases did not. That the salary increase for the judiciary came in the same legislative package as the salary increase for key figures of the executive is perhaps fitting, as the taxpayer did not see an improved service from either.
The fact that only 10 per cent of corruption indictments end with verdicts with effective prison sentences primarily reflects the poor quality of the indictments and the lack of quality criminal investigations. A case related to corruption requires a detailed investigation, one supported by financial expertise as well as covert intelligence and surveillance measures. Currently, this is not happening.
Supreme Court reform
This year alone, Kosovo’s court of last instance has reviewed more than six cases in which it found that the acquittals of a former mayor, a former president of the Court of Appeal and a former head of the Directorate of Economic Crimes of the Kosovo Police were the result of legal violations committed by judges in both the Basic Courts and the Court of Appeal.
The Supreme Court gave clear decisions in these cases, noting that judges at these courts made mistakes in their decision in favor of the accused.
However, with the current Criminal Procedure Code, the Supreme Court does not have the power to return these cases to retrial. All the court can do is ascertain that mistakes were made during the trial, and nothing else. Provided their decision is not in favor of the defendant, as with the majority of these cases, the court has no power to redress the situation.
A new Criminal Procedure Code must provide a solution to this situation and should enable the Supreme Court to return a case for retrial even if it finds that there is a violation of the law which would not be in the defendant’s favor.
Likewise, judges who have made mistakes in such cases should have their performances directly evaluated. The current procedure by which judges are evaluated, on a random, rolling basis, often overlooks key decisions made by those judges.
These issues should raise alarm bells and demonstrate to the new Minister for Justice, the new prime minister and each future member of the Assembly the need to commit to a true strengthening of the justice system as their primary and paramount engagement.
The opinions expressed in the opinion section are those of the authors only and do not necessarily reflect the views of BIRN.
Note: This is part of a series of articles delivering solutions to Kosovo’s biggest problems. These analyses are compiled by our team of internal and external experts and are being written with the aim of feeding political parties’ programs with ideas on how to resolve these problems. Kosovo citizens deserve to hear more than just noise, confusion and senseless prognosis by civil society and the media, hence we are providing ideas for all those who are seriously competing in the October 6 parliamentary elections.
16 September 2019 - 16:00
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