Tenth Assessment of the Situation of Ethnic Minorities in Kosovo
(Period covering May 2002 to December 2002)
SECTION 2: ACCESS TO JUSTICE
Access to the justice system, including criminal and civil justice, is a special type of access to essential services. Minorities need to be able to physically access courts and need to be ensured that their cases are being dealt with in a fair and effective manner. In order to help ensure access and fairness, members of minority communities must also be represented professionally in the courts. Since the last Assessment, the UNMIK Department of Justice (DOJ) has taken some steps toward integrating minorities into the judiciary and concomitantly weakening the parallel court system. At the same time, many minorities are still showing a lack of confidence in the UNMIK justice system.
I. JUDICIAL INTEGRATION/EMPLOYMENT IN COURTS
After many diplomatic and technical difficulties, UNMIK has proved successful in hiring a substantial number of judges and prosecutors from minority communities into the UNMIK judiciary. A large part of the "Joint UNMIK - Yugoslav Document" (the Common Document), which was signed on 5 November 2001, focuses on integration of minorities into the judiciary, and confirms the commitment of UNMIK towards furthering the multi-ethnicity of the judiciary by employing more Kosovo Serb judges and prosecutors, thus addressing deep-seeded concerns of ethnic bias. According to the document, UNMIK also agreed to "create and staff a new unit of the DOJ that will be responsible for furthering efforts in this area." Consequently, the Judicial Integration Section (JIS) was created within DOJ, with three primary aims: 1) integrating minority judges and prosecutors into the courts; 2) facilitating access to courts for minorities in enclaves; and 3) following up cases in the courts in which minorities are involved.
The process of judicial integration has been slow, due mostly to diplomatic disagreements between UNMIK and Republic of Serbia. In the process of implementation of the Common Document, it became clear that some key issues still needed resolution, such as whether newly recruited Kosovo Serb judges and prosecutors would be able to maintain their insurance and social security benefits from Republic of Serbia. On 9 July 2002, a Joint Declaration was signed between the Minister of Justice of the Republic of Serbia and UNMIK Deputy SRSG for Police and Justice, to further facilitate the recruitment of Kosovo Serb prosecutors and judges. According to this agreement, the Housing and Property Directorate (HPD) would use its best endeavours to resolve all property claims submitted by the Kosovo Serb candidates; UNMIK would perform individualised security assessments for each candidate; and UNMIK would ensure that other conditions are met, such as recruitment of court support staff. On its part, the Republic of Serbia committed to preserve social security benefits and pension rights for judges and prosecutors, and to allow them the right to take up former posts in the justice system of the Republic of Serbia in the event they decide to leave Kosovo.
This Joint Declaration did help to facilitate the application process. Vacancy announcements for judges and prosecutors were well received by members of minority communities. Following the application period, the Kosovo Judicial and Prosecutorial Council (KJPC) recommended 42 candidates to the Kosovo Assembly, including 19 Kosovo Albanian, 21 Kosovo Serb (including 7 IDPs living in Serbia), one (1) Kosovo Bosniak and one (1) Kosovo Gorani candidate. Though the Kosovo Assembly failed to formally approve these judges and prosecutors, many of them were subsequently sworn into office on 12 December 2002 by the Principle Deputy of the SRSG. The new proportions of judges and prosecutors of different ethnicity better reflect the dynamic between the majority and the minority population in Kosovo.
Along with the integration and employment of minority judges and prosecutors, several courts have recently opened in minority communities. UNMIK has established municipal and minor offences courts in Leposavic/Leposaviq and Zubin Potok, all of which officially opened on 13 January 2003. In addition, a Department of the Municipal Court of Ferizaj/Uroevac and a Minor Offences Court is scheduled to open in trpce/Shtërpcë at the end of March 2003. This has in turn opened up several vacancies for court support staff. Currently, figures show that there are only 63 minority staff members out of a total 1254 court support staff throughout Kosovo. The Department of Judicial Administration (DJA), with the support of the DOJ, is currently filling several support staff vacancies, and members of minority communities have been encouraged to apply. In November 2002, a list of vacancies was posted, including several positions for the Leposavic/Leposaviq and Zubin Potok courts. Kosovo Serbs in the northern municipalities did raise some concerns with regard to the staff vacancies at the time. For example, the "Joint Declaration" did not cover support staff. Many candidates for these new positions had worked for the parallel courts, and it was not clear whether the Republic of Serbia would continue to pay for pension and social security. In order to respond to these concerns and explain the positions in more detail, the JIS and the DJA organised a series of meetings in northern Kosovo with the potential candidates in November 2002.
As the major push for the integration of judges, prosecutors and support staff is underway, UNMIK remains in charge of ensuring that those who are employed in the courts are able to get to the court safely and work in a safe environment. The Joint Declaration does contain a provision on security for newly recruited judges and prosecutors, stating that UNMIK will provide protection based on individualised threat assessments. The OSCE will closely monitor the implementation of this process. On the other hand, court support staff must also be protected, especially the staff who are travelling from enclaves. In this regard there have been a few minor improvements. One example is from Rahovec/Orahovac, where in the Municipal Court there is only one Kosovo Serb employee - a security guard. Two other Kosovo Serb support staff were hired in March 2001, but could not start working due to the lack of an escort service. The DJA addressed the problem by hiring a Kosovo Serb driver to transport Kosovo Serb staff members to and from work everyday. Because of this, the two who were recruited in 2001 should finally be able to begin work. This being said, all is not remedied. In the same court there are four Kosovo Serb lay judges, who have so far not participated in a single trial. The president of the court told the OSCE that they had been officially invited to sit on a panel but did not respond to the invitation because, according to him, they are still uncomfortable and fear the atmosphere to be hostile.
II. PHYSICAL ACCESS TO COURTS AND DETENTION FACILITIES
One of the greatest problems of public access to justice remains physical access to the courts. Since the last Assessment, the situation has been improving, but it still varies significantly from region to region. Access to the courts in the Mitrovicë/Mitrovica municipality remains the most problematic from a logistical and security point of view. The situation there is unique as the courts are located in the mostly Kosovo Serb inhabited northern part of the municipality. While the Kosovo Serbs have no physical access problems, the Kosovo Albanians do, and still must generally use transport provided by UNMIK Police to get to the courthouse. This can become difficult, as there are only a few transports per day, and some days there is no transportation at all due to security concerns. Besides regular court staff who are picked up and dropped off every day at the same time, there is no routine schedule and people who need to get to the courthouse often have to wait at the police station for hours. For Kosovo Albanians and Bosniaks who live in northern Kosovo it is even more difficult because they first have to go to the south, and then wait for the bus to the north. Kosovo Ashkaelia living in Mitrovicë/Mitrovica apparently do not face problems accessing the courts with respect to security, but then they currently have only two civil matters pending at the courts.
Unlike Mitrovicë/Mitrovica, transportation of minorities to courts in other municipalities is done in an ad hoc fashion, with varying degrees of success. In Vushtrri/Vucitrn, transport to the court for members of the Kosovo Serb enclaves is arranged by request in co-operation with the police. There, court clerks also go to the Kosovo Serb enclaves and perform court administrative work on the spot, such as stamping contracts or performing initial court formalities. The President of the Minor Offences Court in Vushtrri/Vucitrn informed the OSCE that judges occasionally travel to enclaves for hearings and witness interviews; however, this is left to their discretion and no figures are available. Nevertheless, residents of enclaves are becoming more aware of accessible court services and the acceptance of the judicial system seems to be improving. At the other end of the spectrum, Kosovo Serbs in the Skenderaj/Srbica municipality apparently refuse to accept safety measures to access the courts. According to the President of the Municipal Court in Skenderaj/Srbica, last year their court heard only two cases where Kosovo Serbs were involved, and both involved criminal matters. In these cases, though the president made arrangements with the police with respect to security, the defense lawyer argued insufficiency of security and asked that the cases be dismissed. The Court and Prosecution agreed to hear the cases at the court in Mitrovicë/Mitrovica, but the defendants did not follow the summon orders and were convicted in absentia.
The situation of physical access has not changed significantly in the Pejë/Pec region. The OSCE has been informed that Kosovo RAE and Bosniaks in this region have no problem accessing court services, while for residents of Kosovo Serb enclaves KFOR escort is necessary. The OSCE learnt that Kosovo Serb residents of the Osojane/Osojan enclave in Istog/Istok municipality have the option to submit requests to the courts through an UNMIK office. In Gorazdevac/Gorazhdevc, complaints or requests to the court can go through either an UNMIK office, UNMIK Police or by a person with an escort from KFOR (with three days advance notice). Kosovo Serb residents of the Biqë/Bica enclave in Klinë/Klina municipality report having major difficulties arranging escorts to court. The village leader expressed concern that KFOR has allocated only two (2) days per week to transport residents to Klinë/Klina.
Within the Prizren region, minorities from the municipalities of Prizren and Dragash/Draga, including Kosovo Gorani, Turk, Roma, Bosniaks and a very small number of Kosovo Serbs, normally access the courts without problems. The situation of Kosovo Serb minorities living in Rahovec/Orahovac municipality remains the same: they cannot move out of their enclaves without an escort. Nevertheless, Kosovo Serbs there are filing more claims before the Municipal Court in Rahovec/Orahovac, and police appear to be responding well to their requests for escort.
In the Gjilan/Gnjilane region, the largely Kosovo Serb inhabited trpce/Shtërpcë municipality falls under jurisdiction of the Municipal Court in Ferizaj/Uroevac. Due to their limited freedom of movement, Kosovo Serbs and Roma are not able to physically access the court and the number of minority cases heard and judged is very small. The OSCE is informed that UNMIK Police does not always provide transportation for suspects and witnesses to hearings and trials, but will enforce court decisions such as arrest warrants if a person does not appear in front of the court. These issues will be addressed once the Department of the Ferizaj/Uroevac Municipal Court and the Minor Offence Court is opened in trpce/Shtërpcë. In Prishtinë/Pritina region, there still remains access problems for Kosovo Serbs living in Gracanica/Graçanicë. UNMIK is addressing this by organising a court shuttle that will go between Gracanica/Graçanicë and Prishtinë/Pritina. Two court liaison officers are being hired who will have offices in Gracanica/ Graçanicë and will assist with legal administration and transport via shuttle.
Like access to courts, access to detention centres by family members of minority detainees remains a widespread problem. The difficulties met by minority families in areas without freedom of movement impact on the detainee's rights to have access to the outside world guaranteed both by the domestic applicable law and international human rights standards. No sustainable protected transport is organised for Kosovo Serb families visiting those detained in Kosovo Albanian areas. Most have to transport themselves or find other ad hoc solutions. The security-related incident on 8 April 2002 in the northern part of Mitrovicë/Mitrovica significantly affected the possibility of visits from Kosovo Albanian families to those detained in the detention centre located in the north part of the town. During the weeks immediately following the incident no escorted transport was organised. Since then the transport of Kosovo Albanian families escorted by Special Police Units (SPU) has been re-established, but only once per week whereas this service was provided twice per week before the incident.
Access of minority lawyers to detention centres is generally good. SPU provides Kosovo Serb lawyers escorted transportation to detention facilities and courts located in majority Kosovo Albanian areas. The access of Kosovo Albanian lawyers to the detention centre of Mitrovicë/Mitrovica is organised by UNMIK Police with departure from the south police station and from the court. The visits to Kosovo Albanian detainees by their defence counsels had only been temporary affected by the incident on 8 April 2002. Despite few complaints, lawyers usually acknowledge having enough time to see their clients, and to prepare the defence. The Criminal Defence Resource Centre (CDRC) also regularly transports minority lawyers, particularly when they do not dispose of sufficient time to request escorted transport to police.
III. PARALLEL STRUCTURES
The existence of parallel courts throughout Kosovo continues to effect access to justice by Kosovo Serbs, and problems such as overlapping jurisdiction and double jeopardy have still been documented by the OSCE. One of the intended effects of UNMIK's programme of judicial integration will be the simultaneous dismantling of the parallel courts. The creation of municipal and minor offences courts in Zubin Potok and Leposavic/Leposaviq will strenghten UNMIK's jurisdiction over the northern municipalities, and the phenomenon of parallel courts should begin to taper off. The recruitment of judges, prosecutors and support personnel for these courts will be in direct proportion to the ethnic composition of the population. Accordingly, only Kosovo Serb judges will likely be appointed for these new courts in the north. It is also expected that the integration of Kosovo Serb judges into the courts in Mitrovicë/Mitrovica will weaken the parallel court in Zvecan/Zveçan.
Significant steps have also been taken to dismantle the parallel security structures, most notably the "bridge-watchers", in northern Mitrovicë/Mitrovica. Some of their members were suspected of being involved in a wide variety of issues relating to intimidation and assaults of different ethnic groups and only a very small number of these cases had been effectively investigated and prosecuted. This reporting period saw the first successful prosecutions against leaders or members of these structures for alleged criminal acts committed against KFOR and/or UNMIK, with some investigations still ongoing. On 2 July 2002 a Kosovo Serb, former member of the bridge-watchers, was convicted for having damaged an UNMIK vehicle and sentenced to a suspended sentence of one year. On 10 December 2002 a Kosovo Serb, also a member of the bridge-watchers, was convicted for his participation in an attack of a KFOR vehicle perpetrated by a group of persons which resulted in injuries to soldiers during the night of 27-28 December 2001. The defendant was sentenced to eight (8) months of imprisonment. On 12 December 2002 another Kosovo Serb, leader of one of the divisions of the bridge-watchers, was convicted for the criminal acts of participating as a leader in a gathering that commits violence, in regards to a riot in northern Mitrovicë/Mitrovica that occurred on 21 June 2000. He was also convicted of unlawful possession of a weapon and participating in a gathering that commits violence in relation to another riot that happened on 8 April 2002. Both riots resulted in injuries to several UNMIK police officers and damages to UNMIK property. The defendant was sentenced to a total of 18 (eighteen) months of imprisonment.