Although elections have become a common occurrence in Kosovo, discussing what is genuinely important for the lives of constituents is rare.

In political party rallies, televised debates and what is written and said by and about political parties, there is a lot of talk of party calculations and maneuvers, polls, slogans and individuals; and less on the practical issues that would inform voters of what to expect after the electoral campaigns. In principle, the electoral campaigns themselves should serve this purpose — so that voters know what they are voting for.

Amid all of this and, above all, to challenge this context, we at K2.0 spoke with experts in various fields. Through their answers we have endeavored to list some of the issues that are not discussed but will be important for voters when they head to the polls on February 14.

Through the series “Elections 2021, a different perspective” that comprises eight articles, each focused on one specific field, we elaborate on what exactly is not receiving due attention, what is the current situation and what should be done to change things in favor of the citizens. We also try to inform voters and make their well-being the focus of the discussion by providing forward looking solutions.

A different perspective on our right to justice

If a definition of the rule of law is required, it would be the principle of governance in which all persons, public and private institutions, including the state itself, are accountable to applicable laws and as such should be judged independently and to be equal before justice.

For this to happen, first of all these laws must be in line with international norms and standards of human rights, which is also the case in Kosovo.

The country’s constitution is considered one of the most progressive in Europe in terms of compliance with international standards and conventions that preserve the integrity of every citizen and ensure equal treatment within the justice system. As the highest legal document, the Constitution takes precedence over specific laws that may leave room for different interpretations, sometimes to the detriment of the protection of fundamental rights.

In this context, Kosovo is an illustrative example that good laws are not enough, while there is a very high level of corruption and nepotism that leads to a lack of rule of law and undermines the functioning of the state.

The results of the 2020 Transparency International Corruption Perceptions Index confirmed the continued stagnation in the fight against corruption, where for the second year in a row Kosovo scored 36 points, ranking 104th — out of 189 countries included — along with Albania, Algeria, Ivory Coast, El Salvador, Vietnam and Thailand.

Civil society, as well as independent professionals and experts, have been advocating for years for the independence of the justice system, and that we must wage war against corruption. Analyses and reports also show that the citizens themselves perceive corruption as one of the main causes of stagnation in the country’s development.

It is therefore to be expected that the rule of law and the fight against corruption will occupy a large place in the statements, presentations and political programs of the parties — even in those parties whose governance is synonymous with misuse of public money and whose politicians are replete with corruption scandals.

The LDK program, the party leader of the current coalition, summarizes all the words and phrases that describe a good rule of law and an efficient justice system — strengthening justice institutions, an independent and impartial judiciary, growth of transparency through accountability mechanisms — but no concrete measures or actions are found that would address any of them.

The other parties programs talk more about the justice system and rule of law in particular, analyzing the various factors that contribute to the problem and also emphasize the steps and measures that the parties claim they will take, at least on paper.

The Vetëvendosje program emphasizes the independent judiciary as well as the vetting process as an integral part of the justice system. It also emphasizes financial support for the justice system, adding human and professional capacities to the Appeals department within the Basic Court in Prishtina, as well as in the Special Prosecution, in order to fight crime and corruption.

AAK also focuses on the independence of justice institutions, budget increases, the fight against corruption, justice reforms and the vetting process.

On the other hand, PDK’s program gives priority to the completion and implementation of the Functional Review of the Rule of Law Sector (RFSSL) — an initiative started in 2016 that aims to review the legal framework and cooperation between all judicial bodies. PDK also emphasizes the increase of independence, professionalism, transparency and efficiency of the judiciary and prosecution, as well as the better implementation of criminal sanctions and alternative measures.

We talked about an independent justice system with two experts and researchers in the field of rule of law: Rreze Hoxha Zhuja, researcher at the Group for Legal and Political Studies, and Ehat Miftaraj, Executive Director of the Kosovo Law Institute (KLI). To our questions about what we lack, what aspirations we should have and how change could come about, the experts answered:

What do we lack?

Rreze Hoxha Zhuja, researcher, Group for Legal and Political Studies:

Quality, effectiveness, independence and impartiality from political actors are the four main elements that are lacking in the rule of law institutions in Kosovo. Despite numerous reforms in this sector, they have failed to systematically address its shortcomings and have often, deliberately, misidentified the cause of the problems.

Generally, the findings of the reforms in this sector have come up with recommendations for improving the technical aspects of how institutions operate, the creation of new mechanisms that duplicate the work of existing mechanisms and the need for training — all of which are important in their essence, but fail to address the crux of the aforementioned problems. This is because they do not discuss the necessary aspects of personal integrity, morality, professionalism and values of individuals who are part of this sector. Such results are considered to be the result of a lack of political will to strengthen the rule of law sector, considering that this would have high political costs.

Given these points, what we are failing to address is the fact that the essence of this sector’s malfunction is human behavior and the lack of willingness to work — not legislation, not the existing structure of institutions, not procedures. Human behavior and the lack of willpower are consequences that range from a lack of courage to practice the profession to connections and proximity to party interests. Therefore, what this sector lacks is a reform that addresses ethics, professionalism, integrity, independence and impartiality from the world of politics.

Ehat Miftaraj, Kosovo Law Institute, KLI:

Since the declaration of independence, the justice system in Kosovo has been going through reforms that focus mainly on the adoption of legislation and the formation of new mechanisms, which most of the time are related to external requirements, such as visa liberalization or the dialogue process of the Stabilization and Association [agreement] between Kosovo and the EU.

The needs of citizens are oriented toward the rule of law, legal security, the right of access to justice, which are guaranteed by the Constitution, but are not implemented in practice for the ordinary citizen.

To date, no political party or government in Kosovo has oriented its policy toward the needs and interests of the citizen, in order to determine what has worked and what hasn’t. Access to justice is a fundamental human right. Citizens must believe that the judicial institutions are fair, impartial and independent, that judicial institutions are run by individuals who have integrity and values that promote human rights and freedoms. While these principles are guaranteed by the Constitution and the law, in practice these rights in Kosovo are illusions that are not practically applied.

The justice system lacks integrity both at the institutional and the individual level. Justice in Kosovo is selective, which means that citizens, instead of enjoying justice, are often victims of the system itself.

What aspirations should we have?

Rreze: To establish an independent judiciary and a professional prosecutorial system where organized crime and corruption are fought.

The institutional cycle for fighting crime and providing access to justice for citizens is broad and requires institutional coordination, which is absent. This is because each of these institutions has dealt with numerous legal changes and various technical reforms, and has not addressed the essential problems, which have to do with the professionalism and integrity of the individuals engaged there. Strengthening performance measurement mechanisms, implementing disciplinary legislation, continuously verifying the integrity and purity of individuals is the tool that can provide a rule of law sector where crime is fought and access to justice is not denied.

On the other hand, the application of frequent reforms — which are never finished due to the political situation in the country and shift their approach with each new government — will only contribute to the weakening of the already very flawed existing system and not improve it.

Ehat: The legal and legitimate aspirations and demands of the citizens of Kosovo are clear: Governance based on values and principles that promote the rule of law and good governance, where the citizen is in the spotlight. The aspirations of the citizens and institutions of the Republic of Kosovo should not be oriented to build a rule of law only for the sake of fulfilling criteria that are related to the visa liberalization process or our journey toward European integration, rather, it should work toward embracing adequate values and standards that ensure that every citizen is treated equally before the law and the system.

Although Kosovo, geographically speaking, is in a corner of the European continent, the citizens of Kosovo have the same orientation and believe in Western values i.e., the demands of the citizens of Kosovo are and should be the same as those of EU citizens. The aspirations are clear, [we should be] seeking a state where we get adequate and professional services in the justice system, education, health, culture, welfare and equal opportunities in return for paying taxes. Kosovo citizens cannot and should not agree that our country should be synonymous with a state that is seen as the most corrupt in Europe. This does not reflect the identity of the Kosovo citizens and the values ​​they represent.

Kosovo deserves to be governed and represented by people with integrity, who do not go against the law and who have not a publicly contested professional or personal credibility. Fundamental human rights and freedoms are indivisible, inalienable and inviolable, and they are the basis of the legal order of the Republic of Kosovo, and this standard should not just remain a decoration in the Constitution, but should be an aspiration and daily request to the institutions of justice.

What changes are needed to fulfill aspirations?

Rreze: A political consensus in order to improve the current rule of law situation is an inevitable necessity. Before reaching a consensus, there must be political will for positive change and a clear plan of how to achieve this goal.

With an unstable political situation, where personal interests prevail over general and national interests, any initiative taken is essentially a failure. The changes that are needed are clear and should start with changing representation at high and legislative levels, to then proceed with key and substantial reforms in the rule of law sector to achieve a total reform. The approach followed so far and the adaptation of governance to personal and party interests must be changed in order to create a new institutional formation in the country, with institutions focusing especially on rule of law.

Ehat: In countries like Kosovo, which is a fragile democracy and has very weak institutions and is easily influenced by politics and interest groups, the agonizing situation we are in today can only change if there is the political will to change the mentality and practices established in the last decade. All parties are missing this political will in this [year’s] campaign.

The party programs are almost identical to each other, their proposed ideas seem like templates without proper elaboration and without showing what their actions will be to improve the rule of law in Kosovo, increase access to justice and ensure the independence and integrity of

The most important process that Kosovo is going through today is the process of Functional Review of the Rule of Law Sector, a process that is in public consultation. This process, led by the Ministry of Justice, has been supported by tens of millions of euros from our key partners, such as the US and the EU. Sixteen policy documents have emerged from this process, identifying problems, challenges and proposing concrete measures to improve the rule of law in areas such as: Integrity or — as it’s known to the public — vetting, accountability, professionalism, access to justice, efficiency, tools legal, fight against organized crime and corruption, free professions, cooperation with civil society, etc. The coming government will be obliged to integrate this process into government policy and start fulfilling the objectives, which will require constitutional and legal changes, but also the restructuring of institutions in the field of rule of law.

Unfortunately, not even one political party has clearly indicated what its position will be regarding this process, which will be the constitution of rule of law in the next five years. On the contrary, they have proposed measures that go against this process, and in certain cases measures that severely limit and violate the principles of democracy and the rule of law.K

Feature image: Atdhe Mulla / K2.0.