Perspectives | Justice

‘Special’ supervision for the Special Court

By - 03.12.2020

What started in the Council of Europe should have the option to end in the Council of Europe.

In 2011, the Parliamentary Assembly of the Council of Europe adopted Dick Marty’s report, who alleged that some Kosovar leaders committed crimes during and after the war in Kosovo. Based on this report, in 2015 Kosovo established the Specialist Chambers, or the Special Court, which is currently examining the first indictments. This is the simplified version of the Special Court’s history.

Given that the genesis of these allegations lies within the “legislature” of the Council of Europe, would it not be natural for the accused — and all Kosovars — to have access to the Council of Europe judicial body, the Strasbourg Court? Even if we leave aside the origin of the accusations, should not Kosovars, like the other 800 million inhabitants of this continent, be protected by one of the most sophisticated courts in history?

From our perspective as Kosovars, the answer to these questions is definitely affirmative. The reasons why the request for a “special” supervision of the Special Court is perfectly legitimate has to do with what the Strasbourg Court represents and the short and long-term effects of its supervision on Kosovo courts.

The prominence of the Strasbourg Court

Near the Council of Europe’s Parliamentary Assembly building, where Dick Marty’s report was adopted, is the Palace of Human Rights, which serves as the European Court of Human Rights (popularly known as the Strasbourg Court or ECtHR for short). Forty-seven judges of this court are among the most prominent lawyers in their respective countries who after being selected nationally, were also approved by the Parliamentary Assembly of the Council of Europe itself.

Over the last 70 years, the Strasbourg Court has reviewed and ruled on the most pressing problems of the European continent regarding human rights and freedoms. The Greek junta in the 1960s, the Turkey coup attempt in 2016, interstate conflicts such as the recent one between Azerbaijan and Armenia or those between Georgia and Russia, Ireland and the United Kingdom, Ukraine and Russia, Cyprus and Turkey, or the conviction of individuals for war crimes, such as Nikola Jorgić or Maktouf and Damjanović — are just some of the cases that prove the experience of the Strasbourg Court with war crimes issues.

The sui generis nature of this specific Kosovar court should definitely be put under the magnifying glass of Strasbourg.

The wide range of knowledge and legal tradition that every national judge brings to the Strasbourg Court combined with the variety of issues that have been presented before the court, has made the Strasbourg verdicts widely considered as the most well-written texts of modern jurisprudence on human rights and freedoms. The verdicts of this Court are studied everywhere in universities, regularly get cited by local courts, and serve as a source of inspiration for the writing of numerous academic books and publications.

While there is room for criticism and improvement of the ECtHR, the quality and prominence of the legal knowledge that serves as the raw material for the administration of justice in this institution is indisputable.

Immediate effect

As long as the Strasbourg Court has no jurisdiction over Kosovo and consequently over the Specialist Chambers, “our” Hague judges should “worry” only about each other’s supervision. Thus, basic instance judges, before taking any action, will ask themselves whether their appellate colleagues will uphold or overturn their decisions. Those on the Appeals are concerned about the judges of the Supreme Court panel and so on up to the panel of the Constitutional Court.

All of these judges, regardless of the panel where they are appointed, are part of the same court, interact within the same roof and are selected and paid from the same source. None of these facts automatically imply that they are not independent or cannot supervise each other effectively. However, the sui generis nature of this specific Kosovar court should definitely be put under the magnifying glass of Strasbourg.

Let us imagine for a moment that Kosovo joins the Council of Europe for its fourteenth birthday, on February 17, 2022. On this date, the jurisdiction of the Strasbourg Court will extend to all decisions of the Kosovo courts, including the Specialist Chambers operating in The Hague.

On February 18, 2022, a day after Kosovo’s membership in the Council of Europe, it is easy to imagine that the atmosphere in the Special Court would have changed. All judges, prosecutors, legal assistants and other officials of that court, before scheduling a hearing, making a decision, rejecting an appeal or accepting a prosecutor’s request, will ask themselves: Will my decision pass the scrutiny of the prominent Strasbourg Court judges?

So, only the existence of this “concern,” without any concrete appeal being filed by Kosovars at the Strasbourg Court, will increase the diligence and the quality of justice rendered by the Special Court in The Hague.

Medium and long-term effects

The main effect of Kosovo’s membership in the Council of Europe will be the possibility of the dissatisfied parties with a final decision of the Specialist Chambers to file an appeal to the Strasbourg Court.

Everyone would benefit from this possibility. Judgments of convictions (if any) of the Specialist Chambers would gain additional legitimacy if also confirmed by the Strasbourg Court. On the other hand, if the Strasbourg Court finds a violation of the European Convention on Human Rights in relation to convictions, admissibility of evidence, handcuffing or unjust detention, then the injured party would have the opportunity to redress the violation.

None of the parties that believes in its version of the facts and the interpretation of the evidence should fear such perspective.

It is a tremendous injustice for the Council of Europe on the one hand to “accuse” Kosovars through the parliamentary assembly for the violation of the most basic human rules and on the other hand to deny them the right of access to the judicial body that the Council of Europe itself has created to protect these fundamental human rights.

The injustice becomes deeper when you consider that those accused of war crimes before domestic courts operating in Bosnia and Herzegovina and Serbia enjoy the full right to apply to the ECtHR. Some of them, after being convicted in their home countries, have successfully exercised this right and won the case before the ECtHR (see Judgment in the case of Maktouf and Damjanović v. Bosnia and Herzegovina).

States can be judges of themselves up to a certain point, but nothing replaces the strict control of the Strasbourg Court.

Some may argue that despite the fact that Kosovo is not part of the Council of Europe, the Kosovo authorities have committed to the implementation of the Convention. The problem with this argument is that all Council of Europe member states are obliged to implement the Convention in their internal procedures, and yet the Strasbourg Court finds serious violations of the Convention regularly.

Specifically in the case above, the war crimes tribunal in Bosnia and Herzegovina was obliged to implement the Convention, but nevertheless the review in Strasbourg showed that the Convention had been violated. In that case, the Grand Chamber of the ECtHR, composed of 17 judges, unanimously found a violation of Article 7 of the Convention. The inevitable conclusion is that states can be judges of themselves up to a certain point, but nothing replaces the strict control of the Strasbourg Court.

Beyond that, in the case of Kosovo’s membership in the Council of Europe, all the effects described above would extend to citizens, businesses and other Kosovar organizations, who could finally turn to the Strasbourg Court to seek redress for the violation of their rights on property, fair trial, nondiscrimination, freedom of expression, and so on.

Pressing need for membership

Membership in the Council of Europe should be a high priority for Kosovo. This haste is dictated by the temporal jurisdiction (ratione temporis) of the Strasbourg Court.

According to the general principles of international law, treaties have no retroactive effect (see Šilih v. Slovenia). This means that the Convention may not be binding on a Contracting Party in respect of an act or fact which occurred before the date of entry into force of the Convention related to that Contracting Party, nor on a situation that has ceased to exist before the date of entry into force. The doctrine of continuous violation is an important exception of the temporal jurisdiction but is not relevant to this paper because criminal punishment is considered a momentary event rather than a continuous event.

Thus, if Kosovo’s membership takes place on February 17, 2022 as we imagined above, this means that for the Strasbourg Court any final conviction given before February 17, 2022 is outside its temporal jurisdiction (see Blečić v. Croatia). Hypothetically, if the first instance of the Specialist Chambers renders a conviction that is upheld on appeal before February 17, 2022, the convicted person cannot appeal to Strasbourg, although proceedings may still be pending at the third or fourth instance panels of the Special Court.

This leads to the conclusion that membership should take place as soon as possible so that the space outside Strasbourg’s jurisdiction is as small as possible.

If Kosovo takes this project seriously and believes in it, the membership process should not be challenged by any insurmountable obstacles.

Since independence, every 2 to 3 years there have been public statements that Kosovo is preparing to seek membership in the Council of Europe, but nothing concrete has ever come to light. The least that can be said is that faint efforts have been made toward a vital goal.

To join the Council of Europe, according to its statute, Kosovo needs the votes of at least 32 of the 47 members of the Committee of Ministers. Kosovo is currently recognized by 34 of the 47 Council of Europe countries so if Kosovo takes this project seriously and believes in it, the membership process should not be challenged by any insurmountable obstacles.

This does not mean that membership is just a mathematical calculation and that will consequently be an easy procedure. None of Kosovo’s international achievements were fulfilled like that. Kosovo state opponents will strongly reject its membership, while third parties who are indifferent, including the Council of Europe itself, may not want a turmoil in the status quo. Therefore, it is Kosovo that should raise this issue with great zeal because to wait for the opponents to let go or for the indifferent to become active, is simply a waste of time.

Belarus and Kosovo are the only countries on the European continent that are not members of the Council of Europe. The first one, despite recent developments, is still recognized as a dictatorial state that does not seek CoE membership; while the second one is a young state with an emerging democracy aiming to become the 48th member of the organization. The context created by the Special Court functioning is an additional strong reason for Kosovo to finally overcome its shyness and resolutely seek its place in one of the most important organizations of the old continent.

Feature image: Arrita Katona / K2.0.