The words “special court” have been the elephant in the room in Kosovo for the past two years. Before the Kosovo Relocated Specialist Judicial Institution — to call it by its legal title — had even been formed, it was already causing heated debate in the media and in the Kosovo Assembly.

It was precisely because of these numerous disagreements that the first attempt to establish the ‘Specialist Chambers’ and ‘Specialist Prosecutor’s Office’ in June 2015 failed, because not enough deputies voted in favor. A little over two months later, with little substantial debate, the Assembly did approve the formation of the judicial mechanism that has caused so much discussion.

Needing two attempts, and plenty of international pressure, to pass the necessary constitutional amendments through the Assembly, there has been no shortage of emotive statements about what this new structure means for Kosovo’s nascent statehood.

But somewhat lost in the back and forth has been the detail. What, exactly, do the Specialist Chambers and Specialist Prosecutor’s Office consist of? How will they work? And what needs to happen before they kick fully into action?

K2.0 addresses these fundamental questions to provide answers on what we can expect in the next five years.

What’s law got to do with it?

Everything began with the December 2010 report on “Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo.” Prepared for the Committee on Legal Affairs of the Parliamentary Assembly of the Council of Europe, the report — which is commonly known by the name of its author, Dick Marty — was approved by the Parliamentary Assembly in January 2011, on the basis of assumptions that serious crimes had been committed during the war in Kosovo.i Right after the approval of the report, the EU Rule of Law Mission in Kosovo (EULEX) established a Special Investigative Task Force that would immediately start investigations into the issues raised in the report.

On April 2014 an exchange of letters between the President of the Republic of Kosovo and the High Representative of the European Union for Foreign Affairs and Security Policy took place, and was ratified by the Kosovo Assembly the following month. The exchange of letters was treated as an international agreement and contained the commitment by the Republic of Kosovo to establish Specialist Chambers and a Specialist Prosecutor’s Office within the Kosovo judicial system.

Very soon after that, following years of behind-the-scenes investigations, in July 2014, the EULEX Task Force announced for the first time that their investigations had resulted in compelling evidence that would enable them to file indictments against certain former senior officials of the former Kosovo Liberation Army, related to allegations of crimes mentioned in the Council of Europe report.

At this point, serious practical discussions begun about adapting the constitutional framework to allow a fully independent, impartial and transparent legal mechanism that would ensure the safety of witnesses and criminal proceedings. Hence in August 2015, Amendment No. 24 was made to the Constitution of Kosovo, to allow room for the establishment of the Specialist Chambers and the Specialist Prosecutor’s Office. The same month, Law No. 05/L-053 was also passed to establish and regulate the organization, function and jurisdiction of the new mechanism.

Almost a year later, in February 2016, a host state agreement was signed between Kosovo and The Netherlands. This agreement authorized the Dutch authorities to start preparations for the Specialist Chambers and the Specialist Prosecutor’s Office, to be based in The Hague. The Law on Specialist Chambers and Specialist Prosecutor’s Office, also states that these functions will have a seat in Kosovo and that they may also sit elsewhere on an exceptional basis if necessary in the interests of the proper administration of justice.

According to the August 2015 constitutional amendment, the mandate of the Specialist Chambers and the Specialist Prosecutor’s Office will be for a period of five years, unless notification of completion of the mandate occurs earlier.

Specialist Chambers — the basics:

The Law on Specialist Chambers and Specialist Prosecutor’s Office has a total of nine Chapters and comprises of 65 Articles, with various provisions and principles set out; the major ones are explained below.

Firstly, the chambers will be attached to all levels of the court system in Kosovo, meaning that the Basic Court, Court of Appeal and the Supreme Court will all have an added special chamber that will only deal with the alleged crimes stipulated in the ‘Dick Marty report.’ The Constitutional Court will also have a chamber attached, comprised of three judges. All the judges in these chambers will be international and are appointed by the EULEX Head of Mission, instead of by the president of Kosovo as with regular domestic procedures.

Secondly, the jurisdiction of the Specialist Chambers is very important, especially given speculation about whether or not the chambers are able to try cases of political murders that occurred after the war. In this domain, the law is very clear and precise — it foresees that the Specialist Chambers will only have jurisdiction over: crimes against humanity and war crimes under international law; and crimes under Kosovo law that relate to the ‘Dick Marty report’ and its allegations of “grave trans-boundary and international crimes committed during and in the aftermath of the conflict in Kosovo.” The latter must have been the subject of criminal investigation by the EULEX Task Force. Furthermore, the law states that jurisdiction is limited only to crimes that occurred between January 1, 1998 and December 31, 2000.

There is an interesting catch here: The law stipulates that in order to be dealt with by the Specialist Chambers, the alleged crimes must have either commenced or have been committed in Kosovo. Legally, this might have interesting implications, because it means the territorial jurisdiction is not solely within Kosovo; with the word “commence” it can include also crimes that might have started in Kosovo and then continued and/or been completed in another country, such as, for example, Albania.

Thirdly, the Specialist Chambers have superiority over all the courts in Kosovo. That is very clearly specified in Article 10 of the Law, under concurrent jurisdiction. What that means is that at any stage of an investigation or proceedings, the Specialist Chambers or the Specialist Prosecutor may order the transfer of proceedings within its jurisdiction from any other prosecutor or any other court in the territory of Kosovo to the Specialist Chambers and the Specialist Prosecutor. The State Prosecutor or Court must refer to the Specialist Chambers any files pertaining to the requested case as the Specialist Chambers’ order for transfer is final and binding.

Specialist Prosecutor’s Office — not the same as Specialist Chambers:

The Specialist Prosecutor’s Office, is an independent office for the investigation and prosecution of crimes within the jurisdiction of the Specialist Chambers. As such, the Law also sets out important provisions for it.

Firstly, the Specialist Prosecutor’s Office alone is solely responsible for the investigation and prosecution of responsible persons for crimes that fall under the jurisdiction of the Specialist Chambers; it is therefore entirely separate from all the prosecution authorities in Kosovo. Furthermore the Specialist Prosecutor’s Office has the power to take over the mandate and the personnel of the Special Investigative Task Force, as well as the power to seek assistance from state authorities regarding their needs in conducting their work.

Secondly, and crucially, the Specialist Prosecutor’s Office has its own police, which has the same authority and responsibility to exercise powers given to Kosovo Police under Kosovo law. Whereas the actual Kosovo Police can be counted on only for matters of assistance, such as carrying out orders or serving documents on behalf of the Specialist Prosecutor’s Office and Specialist Chambers.

Thirdly, the detention center for those indicted by the Special Prosecutor’s Office will not be in Kosovo, but rather in The Netherlands. There will be a Registrar that will be responsible for managing and administering the detention function and facilities for the Specialist Chambers, while the detention officers will have the authority and responsibility to exercise powers given to Kosovo Correctional Officers under Kosovo law. When released, persons detained in detention facilities will not be released in The Hague, but will be transported as detainees until they reach the country where they were originally detained.

Last but not least, convicted persons will not serve prison terms in Kosovo, but in a state designated by the Head of the Specialist Chambers from among countries that show willingness to accept persons convicted by this mechanism.  

Money, money, money — not so funny

The Specialist Chambers and the Specialist Prosecutor’s Office are funded by the European Union and not by Kosovo’s budget. They function completely outside of Kosovo’s public financial management and accountability system, and as such they cannot be subject to audits conducted by the Kosovo National Audit Office. Furthermore, they are not required to comply with Kosovo’s legislation on public finance.

But when it comes to money, the funds of the Specialist Chambers and the Specialist Prosecutor’s Office are not all that matters. In play are also the costs of defending the accused, as stipulated by the Law on Legal Protection and Financial Support for Potential Accused Persons in Trials Before the Specialist Chambers. According to this Law, all accused persons have the right to request assistance for covering the costs of defense and engagement of an independent, experienced and competent defense attorney, to be paid from the Kosovo budget.

The Law also stipulates that necessary financial support will be offered to close family members of persons accused of alleged crimes in the Specialist Chambers proceedings, including expenses related to travel when the proceedings are conducted outside of Kosovo. Given that proceedings will likely take place exclusively in The Hague — despite provisions for them to be held in Kosovo or elsewhere — these travel costs will seemingly be incurred in all cases.

It is not yet clear how the financial support to family members or the right to compensation for the wrongfully detained will be regulated. According to stipulations made in Articles 4 and 5 there is a great chance that these expenses will be paid from Kosovo’s budget.

Special exceptions

Despite the fact that the Kosovo Relocated Specialist Judicial Institution has been established within Kosovo’s legal framework, it is not exactly the same as other institutions within the domestic system. For a starter, the Specialist Chambers have the capacity to enter into agreements and arrangements with states and other entities in the name of Kosovo. These arrangements for the purpose of judicial cooperation, do not have to be ratified by a two-thirds majority in Kosovo’s Assembly as is required for all other international agreements; all that is needed to ratify them is the agreement of the Government of Kosovo.

The jurisdiction of the Specialist Chambers is also not limited by any amnesty that may be granted by Kosovo’s Constitution. Furthermore, the Specialist Chambers’ verdicts are not subject to any form of pardon that might be granted under Kosovo’s domestic system.

Additionally, the entirety of both the Specialist Chambers and the Specialist Prosecutor’s Office — including personnel and papers as well as property — are granted the same immunities as those enjoyed by EULEX under Kosovo law. That means that all their assets are immune from all forms of interference by Kosovo authorities, including simple search. The archives are treated as a separate property and are held outside Kosovo. And crucially, none of these records are considered to be public documents due to privacy and security reasons, and there is therefore no right of access to them.

What now?

After all the undertakings mentioned above, the Specialist Chambers and Specialist Prosecutor’s Office have now been officially established. The host state agreement entered into force in January and 19 judges have been appointed as well as the Specialist Prosecutor and Head of the Specialist Chambers.  

Now we await the adoption of the Rules of Procedure and Evidence by the judges of the Specialist Chambers as a crucial court document that regulates, in detail, the conduct of judicial proceedings before the Specialist Chambers; this will be followed by information about who will be indicted and when the trials will start. From that point, a whole new procedural story will begin that is yet to unfold.K

Feature image: Majlinda Hoxha / K2.0.