Kosovo - annual report 2018

Participants at the joint conference of the Supreme Court and the Constitutional Court on the topic of “Constitutional complaints and current ECHR case-law“
Participants at the joint conference of the Supreme Court and the Constitutional Court on the topic of “Constitutional complaints and current ECHR case-law“

Strategic Framework

Legal Policy Starting Point

The young Republic of Kosovo celebrated its 10th Independence Day in February 2018. Since its independence, the EU has classified Kosovo as a potential accession candidate country with reference to the UN Resolution 1244 (which leaves the final status under international law open). Aiming for EU membership, Kosovo has therefore tackled fundamental reforms under circumstances that have been difficult at times.

As a result, a large number of Kosovar laws have been harmonised with EU standards and many EU regulations and directives have been implemented into national law with the support of numerous international partners, including the IRZ. The Stabilization and Association Agreement, which entered into force on 1 April 2016, has helped to accelerate this process. Accordingly, relevant EU directives and European standards are usually taken into consideration in new legislation projects or legislative amendments.

The conflict over the recognition of Kosovo‘s independence by Serbia continued to cast its shadow over the legal policy starting point in the reporting year. The mediation dialogue led by the EU under the Brussels Agreement has not eased the tension to a significant degree so far. Nevertheless, the Parliament ratified the border demarcation agreement with Montenegro in March with the result that now all 95 criteria for visa liberalisation are fulfilled. The liberalisation has been endorsed by the EU Commission, also in recognition of the progress achieved in fighting organised crime and corruption, but it remains to be seen how quickly it can be implemented as this matter depends on the approval of the EU Justice and Home Affairs Council.

Overall Concept

Kosovo became a partner state of the IRZ in 2001. Ever since, counselling has been provided in cooperation with long-standing partners within the framework of a large number of bilateral, grant-funded projects in a wide variety of formats. This project work was intensified once again in 2018. Constitutional law and juvenile penitentiary law were the main focus areas of the bilateral cooperation. In regard to constitutional law, the projects conducted by the IRZ together with the Constitutional Court and the Supreme Court prioritised ECtHR and ECHR case-law, as well as constitutional complaints. Although citizens already have extraordinary recourse to constitutional complaints in Kosovo, it has not acquired any substantial practical significance so far. Moreover, constitutional complaints have often failed to date due to formalities with the result that there is a lack of seminal case-law.

The IRZ has cooperated with UNICEF Kosovo since 2016 in the area of juvenile penitentiary law. The aim is to improve the situation and perspectives for juvenile inmates after their imprisonment and to establish European standards for a youth-friendly judiciary by means of targeted training. These training courses address the needs of prison staff, judges, public prosecutors and lawyers. Building effective networks between NGOs and the penitentiary system is a declared objective in this context. The IRZ organised active dialogue with the judiciary and juvenile penitentiary system in Lower Saxony and used a number of study trips to Germany to shed light on both the court aspect of juvenile criminal law, as well as the cooperation between the court, public prosecutor‘s office, juvenile detention facility and the probation system. This collaborative approach between the various stakeholders remains quite uncommon in Kosovo. Like so often when dealing with legal reforms, newly introduced provisions under juvenile criminal law require less the adaptation of legal bases, but rather an anchoring in the awareness of legal practitioners as well as implementation in daily practice.

In addition, the IRZ has cooperated with the newly founded Kosovo Prosecutorial Council (KPC) since 2016 and has focused in particular on media liaisons and public relations by the public prosecutor‘s offices and the KPC itself. The training provided in this context draws on a similar programme for the Ministry of Justice that was developed within the IRZ Twinning Project and that seeks to exploit synergy potential and to create a coherent system of media liaisons and public relations within the judiciary.

In addition to its bilateral cooperation measures, the IRZ currently implements EU Twinning Projects in Kosovo (see below).

Foci of Activity in 2018

Constitutional Law/Human Rights and their Enforceability

  • Conference in Thessaloniki, Greece, on “Constitutional complaints and current ECHR case-law“ with judges from the Constitutional Court and the Supreme Court
  • Workshop in Pristina on “The EU Charter of Fundamental Rights and ECJ case-law“ with judges from the Constitutional Court and the Supreme Court

Administration of Justice

  • Seminar on the topic of media liaisons and public relations with staff of the KPC in Pristina
  • Study trip to Germany for staff of the KPC on the topic of media liaisons and public relations

Criminal Law and Penitentiary Law

  • Training on “Safeguarding the protective rights of juveniles to legal counsel in all phases of court proceedings“ in cooperation with the Kosovo Bar Association in Pristina
  • Two training courses for staff of the Kosovar Youth Penitentiary on “Basic and further training as a precondition for the successful resocialisation and reintegration of juveniles in their families and within society“ in Lipjan and Pristina
  • Study trip to Germany by a Kosovar delegation on “Child-friendly approach and cooperation between public prosecutor‘s offices in cases involving juveniles, juvenile courts, probationary services and other institutions within the field of juvenile jurisdiction“
  • Study trip to Germany by a Kosovar delegation on the topic of preventing criminality and resocialisation for juveniles

Basic and Further Training

  • Seminar on “Judiciary and the media“ in Kosovo
  • Attendance by Kosovar participants of the 8th “IRZ Summer School on German Law“ in Bonn

Projects funded by the European Union

EU Twinning project: Strengthening Policy Formulation and Legislative Drafting

The EU Twinning Project that has been implemented by the IRZ since October 2016 builds on its positive and long-standing cooperation with the Ministry of Justice of Kosovo. This thirty-month project aims to expand capacities within the Ministry in four sequential and complementary components:

  • strategic planning within the judiciary,
  • legal harmonisation and legislation,
  • judiciary and the media, and
  • effective implementation of laws.

The project therefore provides extensive support to various departments within the Ministry of Justice in a number of legal areas and is hence able to respond to current needs. An important issue within the Ministry is the major analysis “Functional Review of the Rule of Law Sector“. A comprehensive study of the legal framework as well as a critical look at the problems in practice are intended to develop suggestions for improvement in the sector. The Twinning Project supports the Ministry of Justice in this process. This includes fundamental issues of legislation technique, legal harmonisation with EU law and efficient implementation of the laws themselves. Within this context, the project consists of training courses on regulatory impact assessments and ex-post evaluations.

Moreover, experts of the project work closely with the Ministry of Justice in the areas of communication, public relations and civil society participation in the process of legislation and in legal policy discussions.

Around forty activities were carried out as part of the Twinning Project in 2018. Internships at the Federal Ministry of Justice and Consumer Protection in Berlin and the Lower Saxony Ministry of Justice in Hannover were organised on the topics of “Strategic planning within the judiciary“ and “Effective application of the law“. The project is scheduled to run until April 2019.

EU Twinning project: Further Support to Legal Education Reform

This Twinning Project was carried out to promote basic and further training within the legal professions in Kosovo in cooperation with the Kosovo Judicial Institute (KJI). The project was implemented together with the Center for International Legal Cooperation (CILC) from the Netherlands as the junior partner and was successfully completed in 2018 after a term of 30 months. Its purpose was to improve basic and further legal training, as well as training management at KJI.

For its entire term, the Twinning Project accompanied and supported conversion of the KJI into a Judicial Academy. The priorities of the project were defined in regard to this purpose and, among other things, led to the following outcome, always in close cooperation with the KJI:

  • Development of methods to identify training requirements with the aim of improving the quality of basic and further training
  • Drafting of guidelines for the basic and further training of legal professionals
  • Implementation of train-the-trainer seminars and workshops to improve the competencies of multipliers
  • Preparation of a training manual on case-based basic and further training for judges and public prosecutors
  • Drafting of a training programme for administrative employees at courts and public prosecutor‘s offices

The KJI database was updated at the same time, also to include proposals and templates for data collection and analysis. After the establishment of the Judicial Academy was completed, the project supported the institution in preparing a strategic plan for the further development of the Academy and its tasks over the coming years.

Outlook

The cooperation with the IRZ’s long-standing partners such as the Constitutional Court, the Supreme Court and the Ministry of Justice will be continued and expanded in 2019. In addition, the cooperation with the KPC and with UNICEF Kosovo in the area of juvenile criminal law and penitentiary law will be intensified. The current cooperation with the law enforcement authorities in Lower Saxony will proceed in this area to build on the fruitful, strong, sustained and trusting communication.

Kosovo - annual report 2017

Workshop with staff members of the juvenile penitentiary centre in Lipjan on reforming and modernising young offenders’ institutions
Workshop with staff members of the juvenile penitentiary centre in Lipjan on reforming and modernising young offenders’ institutions

Legal Policy Situation

The Republic of Kosovo has made progress on its path of reforms, particularly in the judiciary, which is also recognised accordingly in the current EU Progress Report of 2016. At the same time, however, it is pointed out that further efforts are required to reform the rule of law. The Stabilisation and Association Agreement between the EU and Kosovo, signed in 2015, also promotes further ties with the EU. It represents a comprehensive set of rules for further political dialogue and mutual economic relations. This enabled the Republic of Kosovo, which was declared a potential candidate country by the EU Commission in 2008 with reference to UN Resolution 1244 (which leaves the final status open under international law), to take a further important step towards approximation to the EU.

Nevertheless, the young Republic of Kosovo faces enormous challenges. The domestic political situation remains fragile. In June 2017, following a vote of no confidence in parliament, new elections were held during which the previously ruling coalition suffered great losses. The new government was formed following tough negotiations and major concessions to smaller coalition partners in a large party alliance with a narrow parliamentary majority. The new Prime Minister is Ramush Haradinaj, who was Prime Minister for a short time already in 2004.

The new elections also led to a personnel change in the Ministry of Justice, so that the judicial reform strategy, proposed by former Justice Minister Hoxha, has not yet been continued.

The international recognition and independence of Kosovo continues to play a decisive role both in domestic as well as in foreign policy. Serbia does not recognise the independence of its former province. However, the mediation dialogue that has been conducted under the sponsorship of the EU for years is a prerequisite for Serbia and Kosovo to be able to move closer to the EU. Some problems have been resolved at the negotiating table, but much of it has not yet been implemented.

Overall Concept

Kosovo has already been a partner state of the IRZ since 2001. Ever since, a large number of bilateral measures have been organised and implemented successfully in a wide variety of formats. Over the years, the IRZ has intensified its existing contacts with partners such as the Constitutional Court and the Supreme Court of the Republic of Kosovo and the Faculty of Law at Pristina University through workshops, seminars, study trips and discussion rounds. Since 2016, the IRZ has also been working with the newly founded Kosovo Prosecutorial Council and since 2017 with the Kosovo Bar Association. The main focus of the work with these partners is on advising on constitutional law, European law, ECHR case-law and general questions of the organisation (e. g. questions of basic and further training for the practitioners of law). The area of juvenile penitentiary law was also added in the year under review, which forms a further pillar of cooperation. In cooperation with UNICEF Kosovo and the Ministry of Justice, the IRZ advises prison staff, judges, prosecutors and lawyers. The aim is a holistic approach to the communication and implementation of reforms in the penitentiary system.

In addition to bilateral cooperation, the IRZ is currently also implementing measures in the form of EU Twinning projects in Kosovo (see below).

Foci of Activity 2017

Constitutional Law/Human Rights and their Enforceability

  • Seminar on “The European protection of human rights under the ECHR and the EU Charter of Fundamental Rights” for academic staff of the Constitutional Court and the Supreme Court in Pristina
  • Workshop on the topic “Right to a fair trial pursuant to Art. 6 ECHR” with judges of the Constitutional Court and the Supreme Court in Thessaloniki

Administration of Justice

  • Seminar in Gracanica for members of the Kosovo Prosecutorial Council on the topic of “Public relations/ dealings with the media”
  • Follow-up seminar in Gracanica for members of the Kosovo Prosecutorial Council on the topic of “Public relations/ dealings with the media”

Criminal Law and Penitentiary Law In cooperation with UNICEF Kosovo:

  • Study trip to Göttingen on the topic of “Strengthening the juvenile penitentiary system in Kosovo” for members of the Kosovan juvenile penitentiary centre Lipjan
  • Study trip to Lipjan on “Strengthening juvenile penitentiary system in Kosovo”
  • Training on the topic of “European guidelines for a child-friendly judiciary” for Kosovar judges and prosecutors in Pristina
  • Two workshops on the topic of “Designing the content of juvenile detention in Germany using Lower Saxony as an example, educational measures and programmes” for members of the Kosovar young offenders’ institution Lipjan
  • Study trip of the Kosovo Bar Association to Berlin on the topic of “Basic and further training for lawyers in the field of juvenile criminal law and chamber law”

Basic and Further Training

  • Lecture at the Faculty of Law of the University of Pristina
  • Participation by three lawyers in the “IRZ-Summer School on German Law” in Bonn

Projects financed by the European Union

EU Twinning Project: Further Support to Legal Education Reform

The objectives and priorities of this Twinning project are closely linked to the development of the judicial sector in Kosovo. The demands to be made on the improvement of basic and further training and the specific content to be prepared for them depend largely on the progress of the negotiations between Kosovo and the EU (Stability and Association Agreement and the European Agenda for Reform 2016) and the process of rapprochement between Kosovo and Serbia (Brussels Agreement 2013 and subsequent dialogue process) but also on the internal constitution of Kosovo itself.

On 24 February 2017, the Act on establishing the Kosovo Judicial Academy came into force, replacing the Kosovo Institute of Justice. In the same month, this project organised a study visit for the heads of the two Councils of Judges and Prosecutors, the President of the Supreme Court, the Attorney General, the Executive Director of the Judicial Academy and other leading representatives of the Kosovo judiciary in Berlin and Brandenburg to present the fundamentals of German judicial basic and further training.

Since then, project work has focused on three main areas: strategy and organisational development of the Academy, reform of the legal traineeship for the judges and prosecutors (Initial Training Program) as well as drafting a basic and further training programme for administrative staff at courts and prosecutors’ offices. The legal traineeship training is still very academic and is of too little practical relevance.

Since May 2017, monthly workshops and round-table discussions with judges and prosecutors have been held to discuss and test the fundamentals of case-based training. Concrete court documents from Kosovo are being employed for this purpose, translated, didactically transformed and used as training material in “Train-the-Trainer” seminars. The final aim is to produce a training manual that will provide the younger generation of judges and prosecutors with new, more practical opportunities for basic and further training.

EU Twinning Project: Strengthening policy formulation and legislative drafting

This Twinning project has the overarching objective of supporting further rapprochement between the Republic of Kosovo and the EU Acquis.

At the end of 2016, the kick-off event took place and the basis both for the organisation as well as the content was developed for the project in Pristina. Further work on the content could begin in 2017. Various activities have been implemented that are allocated to the following four components:

  • Component 1 aims to improve the preconditions for drafting policy strategy papers at the Ministry of Justice.
  • Component 2 supports legislative proposals.
  • Component 3 addresses the challenge of putting adopted laws into practice and establishing an efficient and mandatory impact assessment for legislative proposals.
  • Component 4 examines and improves the Ministry’s internal and external communication in drafting strategy papers and laws.

A large number of different activities were carried out to implement these components, with the focus on employees of the Ministry of Justice. These included, among other things, a study trip by a Kosovar delegation to the Ministry of Justice of the State of North Rhine-Westphalia or the preparation of a comparative analysis in the field of judicial reform and strategic planning in the EU.

An important part of the project team’s work regarding the content and organisation in Pristina consisted of networking and coordinating with other projects on site in order to avoid overlaps and to generate synergy effects. The implementation of the project was delayed by the new elections in June 2017, as there were difficulties initially in forming a government.

The project is scheduled to run for two years and has a budget of around EUR 1.25 million.

Outlook

Cooperation with the IRZ’s long-standing partners such as the Ministry of Justice, the Constitutional Court, the Supreme Court, the two Councils for Judges (KJC) and Public Prosecutors (KPC) and the Kosovo Judicial Academy are to be continued and intensified in 2018. In addition, the new cooperation with the KPC and in the area of juvenile criminal law and the penitentiary system with UNICEF Kosovo will be intensified and form a further pillar of the cooperation. The aim here is to continue the existing cooperation with the correctional system in Lower Saxony in order to ensure a continued intensive, lasting and trusting exchange of information.

In 2018, the EU’s Twinning projects will focus on the areas of basic and further training of judges, prosecutors and legal practitioners as well as advising the Ministry of Justice on issues of strategic orientation, legislative procedures and public relations.

Kosovo - annual report 2016

Professor Dr. Jan Bergmann (head table, right) during the seminar on the topic “Constitutional court media work” in Pristina

Professor Dr. Jan Bergmann (head table, right) during the seminar on the topic “Constitutional court media work” in Pristina

Strategic Framework

Legal Policy Starting Point

The current EU Progress Report for the Republic of Kosovo, which was published in the autumn of 2016, amongst other things attests Kosovo good progress in its reforms of the judicial system. Consequently, the Stabilisation and Association Agreement between the EU and the Republic of Kosovo, which was signed in October 2015 and entered into force on 1 April 2016, and constitutes the first contractual relationship between the EU and the Republic of Kosovo, may also be seen as a success. This Agreement creates an extensive set of rules for closer political dialogue and reciprocal economic relations. This represents an important further step towards assimilation with the EU for the Republic of Kosovo, which was declared to be an official accession candidate country by the EU Commission in 2008 with reference to UN Resolution 1244 (which leaves the final status according to public international law undecided). However, in its report the EU also points out that the judicial administration still does not yet work efficiently enough and that the judicial system faces political fluctuations. In addition to the fight against organised crime, the fight against corruption is one of the central issues repeatedly facing the young Republic. Although various mechanisms for the prosecution of corruption were amongst other things used at different levels and are acknowledged in the EU Progress Report, corruption remains a serious problem in many spheres of public life. Whereas the Kosovo government has undertaken much to fight corruption in the country with its anti-corruption strategy which continues in 2017, a strong political will to deal with this problem in an extensive way remains indispensable. The Minister of Justice, Dhurata Hoxha, who has been in office since July 2016, has announced that a new strategy for judicial reform will be prepared in order to make further progress with the reforms in future years.

Overall Concept

Kosovo has been a partner state for the IRZ since 2001. In the past 15 years, numerous bilateral measures were organized and successfully implemented. In addition to measures in the bilateral cooperation, the IRZ also implements numerous EU Projects in the country (see page 104 et seq.). In the course of workshops, seminars, study trips and discussions, the IRZ intensified its existing contacts to partners like the Constitutional Court and the Supreme Court of the Republic of Kosovo, the Ministry of Justice and the Faculty of Law at the University of Pristina. In 2016, contacts were also established with the newly founded Kosovo Prosecutorial Council and UNICEF Kosovo.

Foci of Activity 2016

Constitutional Law / Human Rights and their Enforceability

  • Workshop in Thessaloniki, Greece, entitled “Anti-corruption” with judges of the Constitutional Court and the Supreme Court of the Republic of Kosovo
  • Seminar in Pristina entitled “Dealing with the media, constitutional procedure law and the protection of human rights together with the new case-law of the European Court of Justice and the European Court of Human Rights” for academic staff and judges of the Constitutional Court and the Supreme Court of the Republic of Kosovo
  • Lecture entitled “Common Tendencies of Constitutional Law in Europe” in cooperation with the University of Pristina for law students at the University of Pristina and an ensuing roundtable with judges of the Kosovo Constitutional Court

Administration of Justice

  • Fact-finding mission over several days by a German expert at the Kosovo Prosecutorial Council to clarify the specific requirement for consultation
  • Initial exploratory talks between the Kosovo Minister of Justice and the IRZ on consultations in preparing a Civil Code for Kosovo

Criminal Law and Penitentiary Law

  • Study trip by a delegation of the Ministry of Justice of the Republic of Kosovo and representatives of UNICEF Kosovo on the issue of “Juvenile jurisdiction” with visits to the Lower Saxony Ministry of Justice, Göttingen District Court and the Göttingen open youth prison
  • Working meeting between staff of UNICEF Kosovo and the IRZ to discuss future cooperation in the field of juvenile jurisdiction

Basic and Further Training

  • Participation by three law students of the Faculty of Law of the University of Pristina at the IRZ “German law” summer school in Brühl and Bonn

EU Twinning Projects

Outlook

As in previous years, bilateral cooperation with the existing partner institutions is also intended to be continued in 2017. Various projects are once again in planning with established partners such as the Constitutional Court and the Supreme Court of the Republic of Kosovo, the Faculty of Law of the University of Pristina and the Ministry of Justice. In addition, projects with new partners such as the Kosovo Prosecutorial Council or UNICEF Kosovo are also planned. In all probability, the IRZ will also advise the Kosovo Ministry of Justice on the drafting of a Civil Code. Initial discussions on this took place between the Kosovo Minister of Justice and the IRZ in Pristina at the end of 2016. Consultation is set to commence at the start of 2017.

Download the entire IRZ annual report in PDF format here: annual report 2016.