On December 7, 2018, Kosovo’s minister of justice made a public commitment to include two new laws in the Ministry’s 2019 legislative program: a law on state liability for human rights violations and a law that would give the Constitutional Court of Kosovo the authority to award damages to individuals when this court determines a human rights violation by the state and its agents.
The minister of justice made this public commitment at a workshop held at the Rochester Institute of Technology (RIT) in Kosovo in the presence of representatives of the U.S. Embassy, the Constitutional Court of Kosovo, the Ombudsperson Institution, the Legislative Committee of the Assembly of Kosovo and representatives of civil society.
The two proposed laws reflected the consensus achieved at that workshop: that these laws were necessary instruments to address the government’s evident failure to respond to human rights violations, to provide effective legal remedies to victims of human rights violations and to strengthen government accountability and the rule of law.
Unfortunately, despite lip-service paid to state responsibility and government accountability, the minister of justice has so far failed to deliver on his publicly made commitment; neither a law on state liability, nor a law authorizing the Constitutional Court to award compensation to victims of human rights violations were included in the ministry’s legislative program for 2019. This may be an indication of how serious (or not) the government is about providing effective legal remedies for human rights violations and about respecting human rights.
Kosovo needs a much more robust legal framework that ensures that victims of human rights violations by the state are provided with effective legal remedies. Currently, it has no comprehensive law regulating the liability of the state and its organs for harm caused to individuals, especially when the harm consists of a human rights violation.
Existing legal remedies for human rights violations are not effective, judicial procedures are cumbersome and time consuming. They do not meet human rights standards required by the Constitution and international human rights instruments, which are applicable in Kosovo.
Failure to protect
The pitfalls of the legal system on state liability are perfectly illustrated by the case of Diana Kastrati. In February 2013, the Constitutional Court of Kosovo ruled that the Municipal Court of Prishtina was responsible for taking measures under the Law on Protection against Domestic Violence and that failure to do so in the case of Diana Kastrati violated her right to life.
In view of continuous threats by her partner, in 2011 Diana Kastrati had asked the Municipal Court of Prishtina for emergency protection, which the court failed to provide. A few weeks after she had made the request, her partner murdered her.
The Constitutional Court viewed the court’s failure to act as a violation of the state’s positive obligation to protect an individual’s human rights, in this case the right to life. In January 2012 it reasoned that:
“… it is the duty of state authorities not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction … This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.”
Additionally, it found that: “to extend to a positive obligation, it should be confirmed that the authorities, who knew or ought to have known at the time of existence of a real and immediate risk to the life of an identified individual from the criminal offence by a third party, failed to take measures within the scope of its competence, which judged reasonably, might have been expected to avoid this risk.”
The decision of the Constitutional Court in the Diana Kastrati case is encouraging, as it affirms the positive obligation of the state to guarantee human rights. However, the court did not award any form of reparation. In 2013, Diana Kastrati’s family sued the state of Kosovo for compensation, but so far, the regular courts have not awarded any form of reparation.
The Diana Kastrati case is a typical example of state liability for the violation of constitutionally guaranteed human rights when the state fails to protect an individual. A state’s human rights obligations are not limited to respecting human rights by only refraining from interfering with an individual’s human rights unless for justifiable reasons. Its obligations also include a duty to protect and a duty to enable the enjoyment of human rights.
The duty to protect human rights, and especially the right to life, requires the state to take special measures to protect persons from human rights violations by others. This is especially so when they are vulnerable, or when their life is at risk because of specific threats or pre-existing patterns of violence.
States must respond urgently and effectively in order to protect individuals who find themselves under a particular threat. Duty towards its people also requires the state to take preventive measures, as well as to investigate, prosecute and punish those who have committed human rights violations. The failure to do so incurs the state’s liability for failing to protect as part of its human rights obligations.
Additionally, the obligation to ensure that individuals can effectively enjoy their human rights requires the state to establish and maintain an effective legal system and to adopt appropriate laws. It also entails the obligation to provide effective legal remedies to all victims of human rights violations.
All major international human rights instruments, including the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights and the 1952 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), explicitly recognize the duty to provide effective legal remedies for human rights violations. According to Kosovo’s Constitution, these international human rights instruments are directly applicable in Kosovo.
Since the Diana Kastrati case, other serious human rights violations in Kosovo have come to light in which the state failed to take responsibility, such as last year’s forced deportation of Turkish nationals, which caused major public outcry, and the failure of the police, a school and health care institutions to protect a minor from sexual abuse.
Despite its obligation to ensure human rights and to provide effective remedies and reparation for human rights violations, Kosovo has so far not adopted a law regulating the state’s liability in this regard — and shows no tangible signs of doing so in the immediate future. As the European Commission’s Kosovo Progress Report 2018 states, “the right to seek compensation and the liability of public authorities in cases of wrongdoing are affected by fragmented legislation.”
Different laws address different and partial aspects of state liability, mostly in a contradictory manner, which leads to legal uncertainty as to the substantive and procedural aspects of how to claim and enforce state liability.
A 2016 amendment to the Law on Public Financial Management and Accountability provides that a “competent court shall be authorized to order a public authority or budget organization to make the compensation in money for the material and non-material damages caused, that have been substantiated by the court on the basis of evidences with the final judgment.”
This provision is useful as it facilitates the payment of compensation once awarded by a court. However, it does not address the shortcomings identified in the legislation as to how state liability should be determined.
The legislative shortcomings surrounding state liability indicate that there is significant uncertainty as to the availability of legal remedies for violations of human rights, which is in itself in conflict with the state’s duty to provide effective legal remedies. In addition to this, the Diana Kastrati case illustrates that judicial procedures and legal remedies for human rights violations are complex and subject to significant delays. Excessive procedural delays seem to be a habit in Kosovo’s courts, as described by the Ombudsperson Institution in a March 2018 report, which also concludes that such delays violate the state’s duty to provide effective legal remedies.
Against this background, one recommendation endorsed at the previously mentioned RIT workshop was that the government drafts and adopts a comprehensive law on state liability in line with Council of Europe standards. The Council of Europe provides general guidelines on the issues that a law on state liability needs to address in order to fulfill the state’s obligation to make good the damage caused by the state, either by compensation or by reparation. Many European countries have adopted special laws regulating state liability in a comprehensive manner (e.g. Estonia, Latvia, Switzerland, Czech Republic, Slovakia, Romania, Luxemburg, Portugal, Spain, Greece, Austria, Turkey and Lithuania).
The second recommendation given was to strengthen the Constitutional Court. While the Constitutional Court may determine that an individual is the victim of a human rights violation by the state, it does not award any form of reparation to victims of human rights violations. As illustrated by the Diana Kastrati case, the victims of human rights violations must initiate new judicial procedures to claim compensation before regular courts under conditions of legal uncertainty and procedural complexity and delays.
This problem could be resolved by authorizing the Constitutional Court by law to award compensation following the practice of the European Court of Human Rights. Such a legal remedy by the Constitutional Court would complement a law on state liability.
Individuals would still have to initiate judicial procedures against the state before regular courts and most of the cases would be settled by regular courts. Only a small fraction of cases would manage to get through the admissibility criteria of the Constitutional Court upon exhaustion of legal remedies before regular courts. But in such cases, the Constitutional Court would have the authority to award compensation and not require the victims to initiate lengthy and cumbersome judicial procedures from the beginning.
These two recommendations show that it is fairly simple to improve human rights protection in Kosovo and that there is a consensus on to how to do it, although details would still have to be worked out. What seems to be lacking is true government commitment to respect and protect human rights in an effective manner and to take the necessary action.
An interesting argument raised at the workshop was that a law on state liability would cost Kosovo a lot and would be unaffordable. This is a perverse argument. It implies that the government would continue with human rights violations and that it has no intention to improve its human rights performance.
A law on state liability should first of all have a preventive effect, i.e. to stimulate the government to raise awareness among its officials about the obligation to respect human rights when performing public acts, to educate them in human rights affairs and to set up effective internal mechanisms of oversight and monitoring to ensure human rights compliance. The purpose of such legislation is not to bankrupt the state, it is to discipline the state to take human rights seriously.
There is still hope that the government will show that human rights matter and that these two recommendations will make their way onto the legislative program of the Ministry of Justice, hopefully this year. It is one thing to make public statements about rule of law and government accountability; it is something else to really do something about it.
The recently promulgated Law on Disciplinary Procedures for Judges and Prosecutors is the best example of a successful and concerted effort to improve rule of law and accountability despite enormous resistance by local and special interest groups that had no desire to improve the system. The same concerted effort is required now to make sure that the state will be held responsible for human rights violations.
Raising this issue and putting pressure on the government for this purpose is the task of civil society and international “friends of Kosovo” who want to see Kosovo succeed at improving rule of law.
Feature: Besnik Bajrami / K2.0.