Mentorship | Human Rights

Hilmi Jashari: The problems that face Kosovo citizens today are the product of systemic failure

By - 26.12.2019

Ombudsman Hilmi Jashari speaks about the challenges of citizens in relation to the state.

The long social and political transition in Kosovo has influenced a long and slow process of democratization of state institutions.

Kosovo is known as a state where there are plenty of laws but they are only partially implemented if at all. This is largely due to a vacuum in the way that Kosovo institutions interpret the laws.

Many local and international reports provide proof that citizens face systematic violations of their basic civil rights. 

The institution that is in charge of protecting, overseeing and promoting rights that are guaranteed by the constitution and international conventions is the Ombudsman.

In 2015, Ombudsman Hilmi Jashari began a five year mandate after being appointed by the Assembly of the Republic of Kosovo. 

In 2018, the Ombudsman was the most trusted institution among Kosovar citizens. 

Jashari spoke to Kosovo 2.0 about the challenges of citizens in relation to institutions. The lack of punitive mechanisms for preventing legal violations and bringing perpetrators before justice. 

K2.0: The institution that you represent is mandated to oversee, identify and address problems that surface in the work of the three main power branches in Kosovo: The executive, the judiciary and the legislative branch. Which branch is considered to be the greatest violator of human rights? Or to put it another way, which institution have you received the most complaints about?

Hilmi Jashari: If we take the number of complaints that were made to the Ombudsman institution as an indicator, then definitely the judicial system dominates. But it is closely followed by the executive or the government. These two have the most complaints.

As for what the issues are, I think that they are usually problems of a social and economic nature. Also issues related to pension schemes are more dominant. As you know, we currently have 23 different social schemes, from pensions to benefits for certain groups of individuals, such as veterans or people with disabilities. This covers the whole spectrum of what we call the social and economic category.

Photo: Altin Gashi / K2.0.

In my opinion, Kosovo faces problems of a systemic nature. So sometimes individual complaints do not reflect the systemic problems very well. In reality they [systemic problems] are the source of the individual problems that citizens have. I would also mention the legislative system, which I consider to be a field with many problems.

One issue is the considerable number of laws that are approved in the Kosovo Assembly with amendments from the year before, which enter and dominate the legislative agenda of the following year. Usually, over 50% of laws that are approved in the Assembly within a year are laws with amendments.

This is damaging for a sustainable and quality legal system. First of all, such a high number of amendments has a very bad effect on legal security. This is a basic principle of a proper legal system.

Second of all, it creates a huge discretionary space for decision-making by executive and judicial authorities. In this vacuum and legal insecurity, they exercise the discretionary right that affects the individual. Third, it is an indicator that we do not have quality laws. Simply because 50% of laws are initiated with amendments for the following year.

In the 2018 report, you noted that the judicial system continues to face a high number of judicial cases. But also that judicial procedures are often delayed and court decisions not executed. What were your institution’s recommendations regarding these issues and to what extent were they addressed by the responsible institutions?

The first approach was to argue before the public opinion and local decision-making authorities that the judicial system is not in accordance with the constitution. The constitution guarantees a fair trial within a reasonable time period. This is a very powerful stipulation and it stems from the European Convention of Human Rights and Freedoms.

The guarantee is even more powerful because not only is it included in an article of the constitution but it is also part of the Convention. In fact, the Constitution states that in cases where there are contradictions between local laws and international standards, the latter overpowers the former, so this gives the Convention superiority.

The state has an obligation to compensate the citizen for this judicial procrastination.

Then there is another very powerful article in the Constitution of Kosovo, article 53. It says that all public authorities are obliged to implement the judicial practices of the [European] Court [of Human Rights] in Strasbourg when making decisions about human rights. So the reference to international standards is powerful for ensuring a fair trial within a reasonable time period. 

The European Court of Human Rights has judicial practices and criteria that say if a normal judicial process is not completed within a period of one year, this principle has been violated. It is not just a declarative act where you find that there was a legal violation. The state has an obligation to compensate the citizen for this judicial procrastination.

Unfortunately, in our country this isn’t applied. Despite the fact that international judicial practices must be directly implemented. If we haven’t managed to do anything about this for 20 years then it is time for the state to start paying for this procrastination. Then the state of Kosovo will learn, when it understands that a large part of its funds are going for compensations. Then it is forced to make changes. If this doesn’t happen, the cycle of human rights protection will not be completed.

We have identified 117,000 cases of unexecuted court decisions.

Regarding this, we sent a proposal to the Kosovo Judicial Council, asking this institution to draft a procedural law that implements a regulation for compensation. As well as a procedure for acquiring compensation when there are procedural delays. 

Moreover, we have identified many cases where court decisions haven’t been executed. We conducted a national study where we found that a high number of cases are hardly executed. Despite the fact that they are determined by court decisions. According to our research, the number of unexecuted cases on the national level is 117,000.

This creates a defect within the system — when court decisions are not implemented. The state undermines the whole of the justice system because it has no effect. This also makes people lose their trust in the system. Because it establishes the conviction that there is corruption and external influence in state institutions.

I want to stop and speak about labor rights in Kosovo, particularly in the private sector. What are the biggest violations that employees of this sector are faced with today? Can we say that we lack mechanisms for punishing violators of labor rights? Taking into consideration that again this year we have had fatalities in the workplace?

Legal and judicial instruments are implemented much more often in the public sector compared to the private sector. In the private sector, we have only one law, the Law on Labor, which attempts to cover this field but has major deficiencies. Moreover, mechanisms for the protection of rights in the private sector are shallow and just about nonexistent compared to those in the public sector.

Municipal levels have also failed because they also have full authorization to oversee the private sector.

The Labor Inspectorate deals with the private sector. It is a mechanism that isn’t so strong because it has very few inspectors. When we take into account that in Kosovo there are a high number of registered businesses, this [the low number of inspectors] makes it difficult to inspect and identify all problems and violations.

Even from personal experience, in several jobs I have seen that many employees work without contracts, without holidays, without payments for extra hours. When asked whether or not they’ve ever been visited by inspectors, they say no. This makes the situation even more severe. Because even when there are complaints these people are subjected to brutal and banal victimization from their employers. 

The lack of oversight mechanisms is evident. The Labor Inspectorate is a central institution. But I think that the municipal levels have also failed because they also have full authorization to oversee the private sector and are required to do so. They [municipal inspectorates] are entitled to engage inspectors within their municipalities to oversee labor rights in the private sector and ensure that those rights are not violated.

At the beginning of the year, the Civil Code Project, drafted by the Ministry of Justice, was criticized by civil society because it contradicts the Kosovo Constitution. Because it does not allow same sex marriage. You also responded to this. How do you see the whole process?

We had concerns regarding the Civil Code because we thought that we’re at a suitable level to regulate this issue through the Civil Code. We fiercely opposed some people who tried to ignore this point [same-sex marriage] by suggesting that this issue should be regulated through a special law. 

The civil code should have given a well-deserved answer for this issue once and for all. We have no dilemma regarding international standards. So I think Kosovo could progress in this aspect, rather than create obstacles and violate this standard, which leads to regress.

When exceptions are made, such as in this case, usually the legislative branch or the authority that makes laws must have a very powerful justification for hampering the rights of a special interest group. Otherwise, actions are based on individual wishes, something that is not allowed in the making of laws, codes etc. However, despite asking the question, we did not get an answer. It was implied that this was simply an arbitrary position of a group of people who wanted to ignore this issue.

Photo: Altin Gashi / K2.0.

You sued the Central Election Commission (CEC) for not representing women equally on election lists, but it did not bear fruit. What do you think, is this proof that the Law for Gender Equality is not being implemented in institutions and political parties?

The 2015 Law on Gender Equality very clearly determines the quota for the representation of women in elections, in legislative institutions, in the judiciary and the executive. Parliamentarians should be the first to fight for the implementation of this law. Not hamper it by finding excuses that are not worth discussing. Because it is the most modern and most powerful law, a special law that refers to gender equality. There is no other way to implement affirmative measures without doing this.

The certification of election lists from the CEC was not in accordance with the Law for Gender Equality. So we demanded temporary measures from the court, which rejected our demand a couple of days later. I believe that our reasons were strong. But we were surprised by the court’s position regarding this case.

We wanted to challenge the system because I believe that it was the right time to create a standard.

The first argument that the Court used in its rejection is that the Ombudsman failed to present evidence. But it forgot that in the Law on the Protection from Discrimination, the burden of proof falls on the defendant, not on the plaintiff. 

The second argument is that the Ombudsman failed to present the names of the individuals/subjects who were discriminated against by not being included on election lists. This means that we had to send the names of all women in Kosovo who are over 18 and eligible to vote. Then hypothetically suppose that potentially they could all have been candidates. We wanted to challenge the system. I believe that it was the right time to create a standard and to take a step towards progress in full accordance with article seven of the ConstitutionThis guarantees and ensures full equality for both sexes in cultural, social, economic and political fields.

However, in our country it is a bit problematic. The Constitution is seen more as an abstract legal document, rather than an instrument that we use to build the future for the citizens of this country.

In September, the Council for the Defense of Human Rights and Freedoms published an analysis about fatalities and suicides in Kosovo prisons. It reported that in the last 20 years, 67 people have died in prisons. Since the National Preventive Mechanism against Torture (NPMT) functions as part of the Ombudsman institution what findings were produced from visits to correctional facilities and detention centers? How many complaints have you received from prisoners?

Most complaints were related to conditions in prisons. NPMT is a mechanism that conducts regular visits in police stations, detention centers and forensics institutions. During these visits, we have a protocol where we determine what we are checking and what we are interested to see. Based on this protocol and the standards of these mechanisms, we are definitely among the best in the Balkans.

The biggest part of the failure has to do with the lack of interventions from the judicial system.

Regarding general conditions — such as food quality and recreational activities in prisons — Kosovo is evidently better off than other Balkan states. As for the number of fatalities in prisons, many cases are under investigation, pending decisions about the circumstances of these deaths. Others were deaths from old age and natural causes.

There is also a problem with cases that are in the terminal stage — so before death — due to illness or health conditions. The issue in question was whether it is necessary to send these people home for mercy and humanity. Or whether prisons should provide better conditions for medical treatment during their last moments in life.

There are also cases of suicide attempts. For this as well we have a standard that the European Council Committee for the Prevention of Torture set as a regulation. When doctors or psychiatrists identify indicators that a person has a mental health disorder or has an unstable spiritual state which can lead them to suicide; protocol determines that the person must be supervised every 15 minutes to resolve such cases.

At the beginning of the year, Human Rights Watch published a report where it found that domestic violence, especially violence against women, continues to be prevalent. The responsible institutions are not doing enough to solve these cases. In the first six months of the year alone, more than 1,500 cases of violence have been reported to the Kosovo Police. What are the weakest links within institutions that are enabling the continuation of violence?

The biggest part of the failure has to do with the lack of interventions from the judicial system. If they intervened in time most of these cases wouldn’t have happened.

In 2015, Kosovo drafted a law that was a step forward in this direction. The law is intended for the electronic supervision of people who have exercised violence. The plan was to set protective measures through court orders in the form of GPS (Global Positioning System) Trackers. The victim would wear this equipment as well to identify their location.

In case a person who has exercised violence tries to approach the victim, the police are notified through the electronic platform. They can respond within 15 minutes to eliminate the possibility of people’s lives being threatened. 

In cases we have seen in the past, arguments and fights went on for an hour until the worst happened. In the most recent case in Gjakova, it is estimated that the fight between the couple lasted for one hour before the murder happened. Had this system or law been available, surely this whole situation would have been avoided.

Some of the most marginalized people in the country are people with disabilities. Many local and international reports note that Kosovo lags far behind developed countries with regards to opportunities for integration. What practices must be adopted by Kosovar society and institutions, so that the exclusion of this community can be gradually transformed into integration.

The best approach is integration. We cannot segregate this community. They are a part of society and must be considered as such. Otherwise, their dignity is violated. They are discriminated against and they are put in an unequal position in relation to other citizens.

In Kosovo, people don’t think about the inclusion of people with disabilities.

Since integration is the answer, have we managed to do this? Definitely not. Today we see that in many public institutions, the biggest problem is accessibility, a basic right. For example, in the building we are in I asked, ‘where is the disabled entrance?’ They told me that they did not think about this while constructing the building. 

In Kosovo, people don’t think about the inclusion of this community. We had this problem during the election as well — some people had difficulty accessing voting centers. City infrastructure, crossings and traffic lights are other obstacles that face this community. But they also have issues with employment and the provision of adequate medical services. They need these to feel like equal members of society. This community is the most vulnerable in Kosovo.

In the recent report you noted that accessing public documents remains a challenge. The preceding year, the number of complaints for denial of access to public documents almost doubled. Can we say that institutions in Kosovo prefer to stay closed so that they can avoid being held responsible for their work?

I think that closure could be a natural tendency of every government. When there is no culture of responsibility, accountability and transparency, which are basic principles for a democratic society.

This situation can only be solved by the power of the law. If the law very clearly determines access and let’s suppose an authority decides to deny someone access to public documents; in that case the next step should be sanction. If a sanction is not implemented then how can we expect to change this culture? How can we see progress in this direction? 

We have a mandate. We have doubled, tripled and quadrupled our interventions to receive responses for these cases. However we cannot replace other authorities who are responsible for allowing access to public documents.

They have put us in an unsuitable legal situation. Because we are not the authority who imposes fines. We do not have an executive mandate.

With the new law [on the protection of personal data], the Agency for the Protection of Data will be allowed to access official documents. There will be two commissioners, one for access to documents and one for data protection. We’ll see how it will function.

We are waiting to see how they will implement the right to sanction. As long as sanctions are not applied, I believe that we will continue to witness officials using their own discretion and free will for giving or not giving answers to the requests of citizens and journalists.K

This conversation has been edited for length and clarity.

Feature image: Altin Gashi / K2.0.