In-depth | Justice

Waiting on the Judges of the North

By - 16.10.2017

Extension of Kosovo judicial system reaches crucial step.

Editor’s note: This article was published on Oct. 16 and makes reference to a meeting that was due to be held on Oct. 17 between President Hashim Thaci and a number of Kosovar Serb judges and prosecutors. The meeting was not attended by any of the Kosovar Serb judges and prosecutors.

In 2015, in his role as leader of the dialogue between Kosovo and Serbia in Brussels, Hashim Thaci announced that he had reached an agreement for extending the Kosovar justice system to the problematic region of northern Mitrovica. However, it is still not yet known for sure whether Thaci will be able to convince judges in the region to swear in before him as president, a necessary step before being decreed a judge of the state.

Tomorrow is Oct. 17, the date that was set for initiating the implementation of the justice agreement reached in Brussels between the two parties in August 2015. The agreement stems from a previous agreement which was reached on April 9, 2013 — the first to be signed between Kosovo and Serbia in the so-called normalization process.

Judges and prosecutors in the north of Mitrovica have refused to become part of the Kosovo justice system ever since the end of the war, answering only to Belgrade and Serbia’s laws. This was thought to be changed through the Brussels agreement, which attempts to include judges and prosecutors who are appointed by the president in an integrated system of justice in the north.

However, the Kosovo presidency has not yet received assurances that the 48 judges and 9 prosecutors that have been recruited by the Kosovo Judicial Council (KJC) and the Kosovo Prosecutorial Council (KPC), will swear in.

While Hashim Thaci was confident that the agreements made in August 2015 would extend the Kosovo judicial system to the north, he still has no confirmation that Serb judges will swear an oath to him. Photo: Atdhe Mulla / K2.0.

Asked whether it had received confirmation that the Serb judges and prosecutors would be swearing an oath of loyalty before Hashim Thachi in the president’s office in Prishtina, the Presidency’s communication office gave K2.0 the following response: “We are in continuous contact with KJC and KPC regarding the issue of decreeing the judges and prosecutors that will be engaged in the north. Once we receive proposals from the KJC and KPC, we will conduct the necessary procedures.”

After the Kosovo war, many laws and regulation were adapted from UNMIK, who were administering Kosovo until the country’s declaration of independence in 2008. The judicial system in Kosovo, including the court in the northern part of Mitrovica was working based on a combination of UNMIK’s laws and those of Yugoslavia.

After 2008, UNMIK’s laws and regulations were replaced by local laws, on the basis of which the courts began to work, with the exception being those in the north, who continued using Yugoslavia’s laws. Judges and prosecutors from the Serb community declared themselves as part of Serbia’s justice system, from whom they are are still getting paid. Judicial processes in the north are currently conducted in a private house with courts working based on Serbia’s legislation.

The Brussels agreement aims to change this situation. However, Serbian judges and prosecutors cannot be paid by the Kosovar state in the future should they not swear in before the president, and thereby tacitly acknowledge his jurisdiction over the state.

Whether this will happen and when is a question mark even for officials of the Kosovo Judicial Council. The KJC manages all of the courts in the country, except the court in the north. KJC spokesperson, Aishe Qorraj, told K2.0 that judicial staff cannot be paid without the appointment of the 48 judges that were recruited in the area being finalized. When asked whether they have a confirmation regarding the swearing in, Qorraj told K2.0 to address the question to the president’s office.

“The election and recruitment processes have not been completed because the implementation of the justice agreement is yet to have been initiated. Moreover, since they have not yet been appointed, they cannot receive wages,” she said.

Separate systems?

Another controversial issue is the implementability of Kosovo laws in the northern region, where Kosovo’s statehood is not recognized. Point 10 of the 2013 structural agreement between Kosovo and Serbia states that judicial authorities must be integrated, and that they will work in accordance with Kosovo’s legal structure.

It also foresees the establishment of an Appeals Court panel in Mitrovica, comprised of Serbian judges and administrative staff that live in the north. The 2015 agreement, which outlines the justice agreement, calls this panel “the Appeals Unit.”

The Appeals Court is the main court of the judicial system as it is responsible for executing judicial decisions. This court covers all of Kosovo’s territory and, according to the law, only one Appeals Court can exist within the Kosovar justice system.

According to a number of analysts and legal experts, the creation of an Appeals unit in the north leaves space for creating a parallel system of justice, or even legalizing the current system, which is not integrated into the Kosovo state, but works as a separate system from the one that operates in the southern parts of the country.

The 2015 agreement also foresees the creation of a Basic Court and a Basic Prosecution Office for the Mitrovica region.

In every other region of Kosovo, the Basic Court has its headquarters in a single building, with a single head of court. However, up until now in Mitrovica, a court in Vushtrri has been used to try cases involving Kosovar Albanians from the region, while the aforementioned court conducted in a private house, outside of the Kosovo system, has been used to try Kosovar Serbs.

The main building of the basic court of Mitrovica, based on the north side of the city, has not been used since 2008 after violent protests. Photo: Atdhe Mulla / K2.0.

Judge Ali Kutllovci is the acting head of the Basic Court of Mitrovica, which is currently based in Vushtrri. Kutllovci explained to K2.0 that even for him it is very unclear as to what will happen with his position after the agreement starts to be implemented, since the text of the agreement states categorically that the head of the Basic Court in Mitrovica can only be a Kosovar Serb judge. However, the agreement also suggests that the court will have two buildings, one based in the north and the other one in the south of the city of Mitrovica.

“If the Serbian judges don’t swear the oath, they cannot be considered as judges, so it is very unclear even for me how someone will be appointed Head of the Court without being a judge first,” Kutllovci told K2.0. “I don’t know how the Judicial Council is thinking to implement this agreement and who they are going to appoint as Head of the Basic Court in Mitrovica if the Serbian judges don’t swear the oath. They didn’t in January when everything was ready. Now they have received another invitation to go to the President’s Office tomorrow and swear the oath, but no one has confirmed their participation. I don’t know. It is a bit complicated and being honest I don’t know more about this.”

In the event that the judges are sworn in tomorrow, one will need to be selected as the head of the Basic Court in Mitrovica by October 22.

According to the agreement, the staff of the Basic Prosecution Office will be of mixed ethnicities, though the head prosecutor of the Basic Prosecution Office will be a Kosovar Albanian. The Office is currently housed within the Administrative Office for the North of Mitrovica (AONM), which is within what is known locally as the Bosniaks’ Neighborhood.

However, despite the fact that rent has been paid on these facilities for the past two years, local prosecutors have never been physically present there because of a lack of security. The Head Prosecutor of Mitrovica, Shyqri Syla, and his staff work at the Vushtrri court.

Meanwhile, the Appeals Court Unit in Mitrovica will be comprised of five Kosovar Serb judges and two Albanian judges, as envisioned by the agreement. Whether the Albanian judges are willing to return to the north is another controversial issue.

The KPC has not given a response regarding how they plan to functionalize the justice system in accordance with the Brussels agreement, or address the fact that it has failed to send its prosecutors to the region in the last couple of years. However, the spokesman of the KPC, Astrit Kolaj, told K2.0 that the KPC has fulfilled all its obligations that stem from the Brussels Agreement for Justice.

“The Council is ready to start implementing the agreement,” he said.

Ready to implement

In the first press conference after being appointed as the new Justice Minister, PDK’s Abelard Tahiri, a former adviser to Hashim Thaci, responded to a question asked by K2.0 saying that he is convinced that the justice agreement will be implemented in practice, calling it an extension of justice and Kosovo’s statehood in that part of the country.

“We are doing our job, doing the impossible, so that within these recently established timelines, we can functionalize the judiciary in that part, and judges of the Republic of Kosovo, be they Serbs, Bosniaks or Albanians, can continue to work in the north,” Minister Tahiri said. “Our citizens will answer to one justice system in every ruling that is respected in the Republic of Kosovo. Every ruling will belong to the Republic — I am not prejudging anything,” he pledged.

Jelena Krivokapic, the only woman judge in Mitrovica, is convinced that the integrated judicial system must be subject to Kosovo legislation in practice as well, despite her skepticism over the implementability of this idea.

In a written response for K2.0, Krivokapic said that the judges who will be proposed by the KJC know that they must swear in before “Mister Thaci” in Prishtina. “I do not expect any of them to have a problem with this. I do not know when the swearing in will happen, because the judges are yet to be appointed, and appointment precedes the decreeing process,” she said, further stating that if KJC proposes her as a judge for the northern courts, she will swear in before the competent authorities, although she did not explicitly refer to Thaci as “president” in her response.

“If the agreement will be implemented, then the Kosovo judicial system will be unique and completely secure,” Krivokapic said. She also spoke about the Appeals Court Unit in the north — which has raised huge dilemmas amongst public opinion about whether it will be a parallel Appeals Court or a branch of the current Appeals Court — saying that it will be a division with no head, only judges and administrative staff.

“There is only one Appeals Court and it is located in Prishtina, where the head of this court also operates. In Mitrovica there will be a department of Prishtina’s Appeals Court, but no head, thus everyone will be obliged to respect decisions made by the head of the Appeals Court in Prishtina,” said the judge who currently operates within the Supreme Court.

"In the 21st century, people need institutional mechanisms, and we are also to blame for this problem, because we have abandoned that part of Kosovo’s population.”

Gjyljeta Mushkolaj, civil rights lecturer at the University of Prishtina

Another issue that must be reviewed is the fact that all decisions made by the parallel system of justice in the north must be integrated within Kosovo’s current system. However, a number of those decisions were made in accordance with Serbia’s legislation, posing a challenge to Kosovo’s judicial sovereignty.

Kosovo authorities have established a commission that is expected to review all decisions that were made by the parallel system of justice up until now. It is expected that this commission, which is a part of KJC, will decide which decisions do not breach Kosovo laws.

Gjyljeta Mushkolaj, a lecturer on the subject of civil rights within the University of Prishtina, told K2.0 that the agreement is good and necessary, as an attempt to integrate the court in the north into the judicial system of Kosovo.

However, she stress that when it comes to civil cases, the court in the north has no alternative but to operate under Serbian legislation due to a lack of recognition of Kosovo institutions by local Serbs.  

“This happens because the people there need to solve the problems with which they are faced, and we as a republic have offered them nothing,” Mushkolaj said. “Take for example family issues, more specifically, alimony determination for children. What do we offer them? People need solutions, and they need to turn towards the courts. In the 21st century, people need institutional mechanisms, and we are also to blame for this problem, because we have abandoned that part of Kosovo’s population.”

It remains to be seen whether the hand of justice will eventually be extended to the part of the state that has caused the biggest headache for years — the north of Mitrovica. However, the Kosovo judiciary is also fragile in the south and has often proven to be open to political influences. It also remains to be seen whether politics will hinder or facilitate the implementation of the justice agreement.K

Feature image: Atdhe Mulla / K2.0.

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