Court Structure, legal infrastructure, and judicial personnel

Most Albanian judges had been thrown out of office in 1989, most Serbian personnel had fled after 1999, and many court buildings had been destroyed and stripped by retreating Serbs (ICG 2000: 30). Most Albanian judges had not been practicing since 1989, and refused to apply the law associated with the Serb oppression 1989-1998. Serb judges did not administer the legal code applicable after the December 1999 decision due to political pressure from Serbia, or due to fear for their lives when holding trials. The lack of qualified and willing local personnel to fill the gaps in judicial services, paralyzed the judicial system for the remainder of 1999 and way into 2000 (Chevallier 2001: 7; Dziedzic 2002: 48; Strohmeyer 2001a: 113-114). However, in September 1999, the Advisory Judicial Commission to the SRSG had been established, comprising eight local and three international judges, which was

296 UNMIK/REG/1999/24, 12 December 1999, para. 1.1.; UNMIK/REG/1999/25, 12 December 1999.

297 UNMIK/REG/1999/ 24, 12 December 1999, Section 4.

298 Initially, translations of the laws were not available in all three languages. Only after the initiative from ABA/CEELI, OSCE and the OSCE-founded Kosovo Law Centre all laws were compiled, translated, and made available to local courts (Rausch 2002: 17). The issue of distribution and publication of laws in all languages remained difficult for a long period and was improved only by non-UN actors. It happened that the UN Police Commissioner’s Office called several months after the adoption of the Criminal Code in 2001 whether OSCE could send them some copies. Author’s interview with former OSCE official, 3 December 2004.

299UNMIK/REG/UNMIK/REG/2000/54, 27 September 2000, sections 4 and 5.

responsible for the appointment and removal of local judges.³⁰⁰ UNMIK managed to reinstate local judges and prosecutors in many regions already in 1999, e.g. seven judges in Prizren in July, and in Mitrovica in September (Stodiek 2004a: 268, 273).

The creation of the Joint Interim Administration Structures (JIAS) Department of Justice on 21 March 2000 helped to coordinate judicial reform from the side of the local administration under supervision by the OSCE (Pillar III).³⁰¹ To establish a joint approach throughout UNMIK, OSCE initiated an informal Working Group on Rule of Law, which coordinated the reform of the judicial sector.³⁰²

In August 2000, there were more obvious signs of the development of a judicial structure. A Kosovo Supreme Court, five District Courts, and eighteen municipal courts were functional.

Several months later, 56 courts and 13 prosecutors offices had been fully staffed, in total 405 local judges and prosecutors have been appointed (ICG 2000: 30-31, Stodiek 2004a: 310).

However, the failure to establish a secure environment for minorities after the end of the war impeded efforts to create a credible judiciary for minorities. This resulted in the fact that even in August 2000 only one Serb judge was working, and Albanian judges in office feared taking controversial decisions (ICG 2000: 30). Lack of resources and funds to pay salaries to local judges in the beginning of the mission adding to the shortcomings of the judicial sector named above (Holm and Eide 2000: 218). Material support by bilateral donors and the re-opening of former Yugoslav prisons in Prizren and Pristina led to a steady increase of activity in the court system; however, in 2000 a fully functioning and impartial judicial system had still not been achieved (ICG 2000: 31).

OSCE criticized UNMIK for not taking action against the lack of impartiality of local judges, and the inconsistent application of law in local courts, and promoted the Kosovo Judicial Institute (KJI) as a provider of legal training and human rights training to lawyers, judges, and prosecutors (Rausch 2002: 17, fn. 18).³⁰³ The Creation of the new Pillar I on 22 May 2001 led to an increase in coherent rule of law strategies by joining the UNMIK Department of Justice and the local police administration (Marshall 2003: 156).

However, fair trials were not guaranteed due to ethnic bias of, or political pressure on local judges. Ethnically biased trials in Mitrovica led to the decision to introduce international

300 UNMIK/REG/1999/7, 7 September 1999,and UNMIK/REG/2000/57, 6 October 2000.

301 UNMIK/REG/2000/15, 21 March 2000.

302 Author’s interview with former OSCE official, 3 December 2004.

303 S/2002/62, 15 January 2002, para. 25.

judges to ethnically or politically sensitive cases.³⁰⁴ The first international judge was instituted in February 2000 in order to increase judicial independence in Mitrovica (Stodiek 2004a: 285). This was applied all over Kosovo so that UNMIK deployed one international judge and prosecutor in each Kosovo district court and two on the Supreme Court (ICG 2000:

31). In Mitrovica, all local judges and prosecutors received international lawyer for assistance and the maintenance of impartiality during trials (Marshall 2003: 161). In mid-August 2000, there were six international judges and two (or 2) international prosecutors all over Kosovo.

However, international judges and prosecutors remained under the necessary quantity and quality (Rausch 2002: 24), were not accustomed to local law procedures (Stodiek 2004a:

329), and needed a large number of expert support staff in order to follow trials (ICG 2000:

31). UNMIK continued to deploy additional international judges and prosecutors: in July 2001, 11 international judges were present in Kosovo (Stodiek 2004a: 329). In District Courts, two local judges and one international judge held sensitive trials together. In politically sensitive cases, or in cases where the impartiality of local judges was in doubt, the UNMIK Advisory Judicial Commission reviewed the case. This led to a decrease of ethnically or politically biased decisions on district court level, but did not change the practice in local courts to discriminate ethnic minorities (Stodiek 2004a: 346). UNMIK, however, established a Judicial Inspection Unit, which could investigate against local judges and prosecutors in case of suspected bias (Stodiek 2004a: 346). From 2000-2004, cases in which international judges were participating, only accounted to about 3 percent of all trials in Kosovo.³⁰⁵ International judges were only involved in trials involving ethnic bias, political issues, and terrorist activities.³⁰⁶

After an agreement of UNMIK with Belgrade in September 2002, the number of Serb judges increased from four in March to forty in autumn 2002 (Stodiek 2002: 346). In late 2002, the share of minority judges was further increased.³⁰⁷ But only in 2003, UNMIK succeeded in dismantling the parallel Serb court structure in all over Kosovo.³⁰⁸

Over the years, the continuous efforts of the OSCE and UN have improved the general situation. According to UNMIK, 300 judges and prosecutors in the local judiciary have been vetted and trained until fall 2004, and 30 international judges and prosecutors remain to

304 Author’s interview with former OSCE official, 3 December 2004.

305 Author’s interview with former OSCE official, 3 December 2004; S/2003/421, 14 April 2003, para. 16.

306 For trials against terrorist, the majority of judges was international (S/2003/675, 26 June 2003, para. 21).

307 S/2003/113, 29 January 2003, para. 29

308 S/2003/421, 14 April 2003, para. 19.

handle the most sensitive cases.³⁰⁹ Apparently, Kosovar institutions and politicians are pleading with the international community to remain very active and controlling in the judicial sector for at least the next five years, as they fear not being able to manage sensitive cases and to construct a functioning judiciary alone.³¹⁰