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.

Kosovo - annual report 2015

Länderbericht Kosovo 2015Participants of the study trip to Oldenburg, Wilhelmshaven and Vechta on the topic of “The prison system and the probation service”

Strategic framework

Legal policy starting point

The Republic of Kosovo, which declared its independence on 17 February 2008, is still not recognised by all states; five of the 28 Member States of the EU are still opposed to Kosovo's independence. All of the successor states of Yugoslavia and Albania have now recognised Kosovo as independent, with the exception of Serbia and Bosnia and Herzegovina, where the Serbian population rejects independence out of hand. A total of 108 states worldwide have recognised the Republic of Kosovo.

Referring to UN Resolution 1244, which leaves open the final status under international law, the European Commission continued to classify Kosovo as a potential candidate for EU accession in 2008. At the same time, the European Union Rule of Law Mission in Kosovo (EULEX) was launched. EULEX supports existing rule-of-law structures by guiding, observing and inspecting in a multiethnic state. EULEX is the only EU mission to have its own executive powers in the justice and police fields. The mandate has been extended to June 2016.

The International Court of Justice found in July 2010 in a report which is not legally binding that Kosovo's declaration of independence was not in breach of international law. Kosovo so far continues to be denied membership of the United Nations and of many other international organisations.

The monitoring of the independence of Kosovo was ended in September 2012 and the International Civil Representative (ICR) was recalled, after Kosovo had created the constitutional and legal framework necessary for this.

The Government under President Atifete Jahjaga, which has been in place since December 2014, faces major challenges. The dissatisfaction of the citizens of Kosovo with the domestic political situation has increased continuously. An indication of this is the increasing numbers of people who have left the country, in particular in 2015.

Kosovo Justice Minister Hajredin Kuci visited the Federal Ministry of Justice and Consumer Protection in Berlin in June at the invitation of the IRZ. He was received there by Federal Minister of Justice Heiko Maas. In addition to discussions on the future cooperation between the two Ministries, an agreement was signed on judicial cooperation in criminal matters between the Federal Republic of Germany and the Republic of Kosovo.

The EU's Progress Report for the Republic of Kosovo, which was published in September, forms part of the "Enlargement package" adopted by the European Commission in November 2015. According to this report, Kosovo has achieved good progress in public procurement and financial control, as well as in other areas.

The Stabilisation and Association Agreement, which was signed in October 2015, and which is the first contractual relationship between the EU and the Republic of Kosovo, has also shown that Kosovo's institutions are able to implement political stipulations. When it comes to compliance with the requirements ensuing from this Agreement, Kosovo must however take considerable further steps, including in terms of the rule of law, the judiciary, public administration, electoral reform, Parliament, human and fundamental rights, minority protection, trade and the Single Market. In this context, priorities will in particular also have to continue to focus on combating organised crime and corruption, taking security measures for judicial staff and parties to proceedings, reducing the case backlog and compliance with provisions of procedural law.

Overall concept

The IRZ has been able to implement a large number of projects in Kosovo since 2001. The IRZ implements both bilateral cooperation activities and third-party-funded and twinning projects.

The two twinning projects entitled "Improving the Approximation of Laws and Coherence of the Legal Framework" and "Strengthening the Correctional and Probation Services in Kosovo" are currently still in the implementation phase. The competition for the twinning project entitled "Further Support to Legal Education Reform" was won in the autumn of 2015, and in content terms constitutes a continuation of the third-party-funded project of the same name, which is to serve the purpose of sustainability. This third twinning project was launched at the end of the year. The activities of the third-party-funded "Further Support to Legal Education Reform" project supported the Kosovo Judicial Academy in the areas of legislation consultation, as well as in the development of a legal library and court management, and was successfully concluded in September of this year after a term of 24 months.

The IRZ has organised large numbers of bilateral activities in the past three years. In workshops and seminars, it has stepped up its existing contacts with the Constitutional Court and the Supreme Court of the Republic of Kosovo, the Law School of the University of Pristina, the Kosovo Judicial Institute (KJI) and the Ministry of Justice.

Foci of activity in 2015

Constitutional law / human rights and their enforceability

  • Workshop entitled "How to promote the passing of proceedings from the Supreme Court to the Constitutional Court" with judges from the Constitutional Court and the Supreme Court of the Republic of Kosovo in Budva, Montenegro
  • Study trip for a delegation of the Constitutional Court and of the Supreme Court of the Republic of Kosovo to the Federal Court of Justice and to the Federal Constitutional Court in Karlsruhe, to the Hesse Constitutional Court in Wiesbaden, as well as to the ECtHR in Strasbourg
  • Seminar on the topic of "Structures of the protection of fundamental rights in Germany" for law students of the University of Pristina in cooperation with the University of Pristina and Professor Dr. Rainer Arnold from the Jean Monnet Chair of the University of Regensburg

Administration of justice

  • Working visit to Berlin for five staff members of the Kosovo Ministry of Justice with specialist discussions at the Federal Ministry of Justice and Consumer Protection, to the group of Parliamentarians on South Eastern Europe and the conference centre of the German Judicial Academy in Wustrau
  • Further Support to Legal Education Reform (EU service contract)
  • Improving the Approximation of Laws and Coherence of the Legal Framework (EU twinning project)
  • Strengthening International Legal Cooperation (EU twinning project)

Penitentiary Law

  • Strengthening the Correctional and Probation Services in Kosovo (EU twinning project)
  • Study visit to Oldenburg, Wilhelmshaven and Vechta for a delegation of the Ministry of Justice of the Republic of Kosovo on the topic of "The prison system and probation"

Basic and further training

  • Attendance by three law students from the University of Pristina at the "German law" summer school in Brühl and Bonn
  • Seminar on the topic of "The fight against corruption in Kosovo" in cooperation with the Anti-corruption Agency, the National Coordinator for Corruption and the Coordinator for the Fight against Corruption at the Office of the Public Prosecutor General of the Republic of Kosovo, Dr. Matthias Hartwig from the Max Planck Institute in Heidelberg, as well as Helmut Leithäuser, presiding judge at Wuppertal Regional Court

Outlook

As was already the case in the previous years, bilateral collaboration with the previous partner institutions is also to be continued and expanded in 2016.

There is a need to stress at this point the good, trust-filled contact with the Constitutional Court that was established in 2009, which the IRZ would like to continue to support through coordinated measures that are tailored to the special needs of this court to establish an independent constitutional court system. Enquiries have already been received for seminars and workshops. The IRZ places a further focus on cooperation with the Law School of the University of Pristina.

Kosovo - annual report 2013

Länderbericht Kosovo 2013Workshop on the constitutional complaint and on human rights (ECHR) in Pristina

General – Conceptual orientation

Legal policy starting point

The Republic of Kosovo, which declared its independence in 2008, has now been recognised by the majority of UN Members as an independent state, including by 23 of the 28 Member States of the European Union and by the United States of America. The International Court of Justice found in July 2010 in a report which is not legally binding that Kosovo's declaration of independence was not in breach of international law. Referring to UN Resolution 1244, which leaves open the final status under international law, the European Commission classifies Kosovo as a potential candidate for EU accession. Kosovo so far continues to be denied membership of the United Nations and of many other international organisations. After the 1999 war, Kosovo was placed under the administrative sovereignty of the United Nations (UNMIK). Since the end of 2008, the establishment of rule-of-law structures in a multiethnic state has also been supported by "EULEX Kosovo", EULEX also having, within a certain framework, both mentoring, monitoring and advisory as well as executive powers with regard to the judicial field and the police. The mandate of EULEX 2012 was re-defined with a view to expanding the capacities of the Kosovo authorities, and was extended until June 2014 and reduced in its scope. The monitoring of the independence of Kosovo was ended in September 2012 and the International Civil Representative (ICR) recalled in September 2012, after Kosovo had created the necessary constitutional and legal framework. The EU's current Progress Report for Kosovo shows 2013 to have been a historic year for Kosovo on its path to the European Union. Kosovo has complied with the demands that were made in the feasibility study in October 2012 for a Stabilisation and Association Agreement in the fields of the rule of law, public administration, minority protection and trade. Additionally, relations with Serbia have considerably improved. Negotiations for a Stabilisation and Association Agreement between the EU and Kosovo have now been commenced. With regard to compliance with the requirements ensuing from a Stabilisation and Association Agreement, Kosovo must take further steps, including in the fields of the rule of law, the judiciary, public administration, electoral reform, Parliament, human and fundamental rights, minority protection, trade and the Single Market. In this context, priorities will also have to include the fight against organised crime and corruption, security measures for judicial staff and parties to proceedings, reduction of the case backlog and compliance with provisions of procedural law.

Cooperation to date

The IRZ has headed a number of bilateral and third party-funded projects in Kosovo since 2001. 2013 was typified by intensive bilateral cooperation with the Constitutional Court of the Republic of Kosovo, the Law Faculty of the University of Pristina and the Kosovo Judicial Institute (KJI). The intensive bilateral cooperation with the KJI was particularly beneficial to the sustainability of the "Legal Education System Reform" twinning project, which was successfully completed in 2012. The further operations for this project will be taken over in 2014 by the third partyfunded project "Further Support to Kosovo Legal Education Reform", which commenced at the end of 2013. The IRZ is the senior partner of this project. Moreover, the implementation of the twinning project "Strengthening International Legal Cooperation" commenced in 2013, and is also managed by the IRZ. Two further twinning projects ("Improving the Approximation of Laws and Coherence of the Legal Framework" and "Strengthening the Correctional and Probation Services in Kosovo") have been in the preparation phase since 2013, and will be commenced in the first half of 2014, with the IRZ as senior partner.

Major partners

  • Constitutional Court
  • Kosovo Judicial Institute
  • Law Faculty of the University of Pristina
  • Kosovo Bar
  • Ministry of Justice

Strategy and method

The particularity of the work in Kosovo is that the country is supported by foreign organisations to a degree which threatens to exceed the ability of the project partners there to absorb the activities. For this reason, it is particularly necessary to carefully weigh up the need for each activity before any operation is carried out in order to avert the risk of duplicating effort and cost. Beyond the abovementioned third-party funding and twinning projects, the IRZ is largely continuing projects in the bilateral field with proven partners, such as the Kosovo Constitutional Court, in the planning of which it coordinates with other organisations.

Foci of activity in 2013

Constitutional law / human rights and their enforceability

  • Procurement of constitutional law literature for the library of the Kosovo Constitutional Court
  • Participation by the President, the Vice-President and the Secretary- General of the Constitutional Court of the Republic of Kosovo as well as of a professor for international law at the University of Pristina/ former judge at Kosovo Constitutional Court to the University of Regensburg's XV International Congress for European and Comparative Constitutional Law in Regensburg in cooperation with the University of Regensburg
  • Seminar with judges of the Kosovo Constitutional Court and of the Kosovo Supreme Court with the objective of guaranteeing the sustainability of the rulings of the Kosovo Constitutional Court in the context of constitutional complaints
  • Seminar with judges of the Kosovo Constitutional Court and of the Kosovo Supreme Court on the topic of "Concrete review of statutes" in cooperation with the British Embassy in Pristina • Study visit to Strasbourg for six trainers and the Director of Kosovo Judicial Institute (KJI) on the topic of "Human rights" in cooperation with the European Court of Human Rights and the Council of Europe
  • Lecture on constitutional law at the University of Pristina
  • Internship for a professor of international law at the University of Pristina/former judge at Kosovo Constitutional Court on topics of constitutional jurisdiction and social law at the University of Regensburg
  • Participation by two Kosovo Parliamentarians from the Committee on Legal Affairs of the Kosovo Parliament at the III International Conference of Parliamentary Committees on Legal Affairs on the topic of "The path to legislation – The role and influence of the institutions involved" in Berlin

Civil and commercial law

  • Participation by the President of the Kosovo Competition Commission at the 16th International Cartel Conference in Berlin in cooperation with the Federal Cartel Office

Administration of justice

  • Four seminars on the topic of "Mediation" for judges as well as public prosecutors in Pristina in cooperation with the Kosovo Judicial Institute (KJI)
  • Three-day workshop for future trainers at the KJI on the topic of "Mediation" in Pristina

Public law

  • Study visit for five trainers at the KJI in European law and for a further employee of the KJI on the topic of "Drawing up curricula on European law" in Trier and Luxembourg in cooperation with the Academy of European Law in Trier and the European Court of Justice in Luxembourg

Basic and further training

  • Study visit for ten representatives of various Kosovo legal institutions to the German Judicial Academy in Wustrau on the topic of "Organisation and modus operandi of the German Judicial Academy, administration, financial and international relations, communication and cooperation" in Wustrau and Berlin in cooperation with the German Judicial Academy
  • Participation by two law students (University of Pristina) in the legal terminology course at the Goethe Institute in Bonn

Outlook

The IRZ is planning to continue its bilateral collaboration with all its previous partner institutions in 2014. It would like to continue to support the Constitutional Court in establishing a separate constitutional court system in Kosovo. On the basis of seminars implemented in 2013, a guide is to be published for the complaints against violations of rights that are equivalent to fundamental rights and judicial referrals to the Constitutional Court of the Republic of Kosovo which is to improve the interaction between the Constitutional Court and other courts of Kosovo, in particular the Supreme Court. The IRZ is placing a further focus on cooperation with the Law Faculty of the University of Pristina, as well as on supporting the Bar. Furthermore, the consultation of the Conditional Release Panel at the Kosovo Supreme Court is planned to take place on the topic of "Suspension of sentence on probation".