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Policy Note No. 09/2018 The Functional Review of the Kosovar Justice system: an overview of the process so far _ October 2018
Group for Legal and Political Studies is an independent, non-partisan and non-profit public policy organization based in Prishtina, Kosovo. Our mission is to conduct credible policy research in the fields of politics, law and economics and to push forward policy solutions that address the failures and/or tackle the problems in the said policy fields. legalpoliticalstudies.org
Policy Note 09/2018 The Functional Review of the Kosovar Justice system: an overview of the process so far Authors: *Barbara Matias, Francisco Jose Garcia Martinez October 2018 © Group for Legal and Political Studies, October, 2018. The opinions expressed in this document do not necessarily reflect those of Group for Legal and Political Studies donors, their staff, associates or Board(s). All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any mean without the permission. Contact the administrative office of the Group for Legal and Political Studies for such requests. Group for Legal and Political Studies “Rexhep Luci‟ str. 16/1 Prishtina 10 000, Kosovo Website: www.legalpoliticalstudies.org E-mail: office@legalpoliticalstudies.org Tel/fax.: +381 38 234 456 *International Research Fellows, Group for Legal and Political Studies “This publication is published by the support of the Democratic Society Promotion (DSP) – financed by the Swiss Development and Cooperation Office (SDC) and Danish Ministry of Foreign Affairs (DANIDA), and managed by the Kosovo Civil Society Foundation (KCSF). The content of this publication is the sole responsibility of Group for Legal and Political Studies (GLPS) and does not reflect in any way the opinions of SDC, DANIDA or KCSF”
THE FUNCTIONAL REVIEW OF THE KOSOVAR JUSTICE SYSTEM: AN
OVERVIEW OF THE PROCESS SO FAR
Introduction
In late November 2016, the Government of What is the functional review: terms of
Kosovo launched a functional review of the reference, methodology, working groups,
whole Rule of Law sector under the lead of and unpredicted changes
the Ministry of Justice, as mandated by
Government Decision No. 07/117 – Annex
The Government Decision No. 07/117 of 23
1. The review would comprise all institutions
November 2016 remains the cornerstone of
related to the topic and seek to impose a
the whole functional review process in
comprehensive strategy for the development
Kosovo. According to the terms of reference,
of effective Rule of Law in the country. The
the final purpose of the review is to prepare
main aim of this policy note will not be on
a comprehensive national strategy for the
the intricate content but rather to trigger
Rule of Law. In line with this, five main
discussion and raise questions with a focus
objectives were originally defined:
on organizational issues related to the
establishing strategic objectives to enhance
functional review of the Rule of Law in the
the efficiency of the involved institutions,
Republic of Kosovo. For this purpose, this
reviewing the legal framework and the
document will start by laying out which
existing cooperation arrangements between
strategies and organisms the functional
said institutions, assessing their capacities
review entails followed by a comparative
to fulfil their functions, providing
look into the functional review processes
recommendations on the legal framework,
other countries from the region – Serbia,
capacities and cooperation processes on the
Bosnia and Herzegovina and Romania - have
field of Rule of Law and, lastly, creating a
undertaken. This will lead to a final section
national strategy on Rule of Law. In its first
on the main issues regarding the process in
version, the functional review process was
Kosovo, and how to successfully move
envisioned to have a mostly technical
forward.
nature, being directed by institutions with a
relevant role in the Rule of Law1. Due to the
This policy note argues that, in order to
change of government in 2017 following
achieve the all-inclusive approach privileged
snap elections, very little developments took
in the Terms of Reference of the
place on this regard until March 2018, when
government decision itself, a clear look at
the new government took over and the
shortcomings of the institutional setup must
process was formally launched. It
be done in order to determine how to best
established working groups and defined a
move forward. This would enhance the
methodological approach for the review. In
potential for sustainable success, as well as
this instance, the review was made more
prevent the country from projecting an
political as the offices of the President and
external image as a state which undertakes
of the Prime Minister became involved, while
important reforms in an unplanned or
uncoordinated manner.
1 Republic of Kosovo, Government Decision No.
07/117, 23 November 2016. Available at:
http://www.kryeministri-
ks.net/repository/docs/Vendimet_e_Mbledhjes_se_
117-te_te_Qeverise.pdf .law enforcement institutions were development management of aid, anti-
relegated2. corruption measures and commercial
Regarding the methodology adopted, the justice. Of these working groups, the first
review is directed by a Steering Committee one, legal and institutional framework, is
charged with defining the general guidelines charged with centralizing and managing all
and ensuring the coherence of all activities. legal aspects, which in practice means any
It is composed of representatives from the finding made by other groups related to
ministries of Justice, Internal Affairs and potential legal changes must be sent and
Finances, the offices of the President and of approved here first. This is expected to
the Prime Minister, the Judicial and ensure the harmony and coherence of the
Prosecutorial Councils, international donors outcome, while the specialized nature of the
engaged in the Rule of Law and even the other groups will allow for a comprehensive
University of Pristina. In its first iteration, the assessment of the state of play in each
State Prosecutor, Police, Customs and sector and institution. To that end, every
Intelligence Agency would have also been working group will have representatives of
part of the Committee, but were later not the institutions directly involved with the
included in the final decision issued in topic, even if they are not part of the
2017. Once more, the original terms of Steering Committee (i.e. police or state
reference shifted due to unpredictable prosecution).
political circumstances. Supporting this
Committee, a Secretariat was established Aside from intensive desk research,
from the permanent structure of the Ministry discussion within the working groups and
of Justice, led by the Secretary General report analysis, the most innovative aspect
himself, to provide the necessary technical of the review was the introduction of some
assistance during the process. This systemic methodology by using the Rule of
Secretariat also assists the working groups, Law Checklist of the Venice Commission and
which in turn are conducting the main the Checklist for promoting the quality of
activities of the review. justice and the courts of the Council of
These working groups amount to seven, Europe European Commission for the
divided in thematic areas, which conduct the Efficiency of Justice (CEPEJ) as guidelines
assessment of the state of play of the for the assessment. Even though this was
judicial and law enforcement agencies of hailed as a very positive step from previous
Kosovo in order to compile a final report to unsystematic, ad hoc studies to measure
be approved by the Steering Committee, and and consider when assessing the
then presented to the Government for functioning of a judicial/law enforcement
consideration. The thematic areas tackle the system, the idea has seemingly not been
following topics: legal and institutional incorporated into the review process thus
framework, functioning of the judiciary, far.
transformation of the penal system,
improvement of mechanisms for access to The functional review was formally launched
justice, inter-institutional coordination and in a conference held on 8 March 2018 in
Prishtina. As determined by the previous
2
Republic of Kosovo, Government Decision No. government, the deadline for the completion
07/117, 23 November 2017. Available at: of all activities would be 1 June 2018. As
http://www.kryeministri- things stand, the original deadline has
ks.net/repository/docs/Vendimet_e_Mbledhjes_s% already passed and the work on analysis
C3%AB_15-
t%C3%AB_t%C3%AB_Qeveris%C3%AB_s%C3 and assessments continues. The expected
%AB_Republik%C3%ABs_s%C3%AB_Kosov%C output remain: a Final Evaluation Report on
3%ABs_2017__.pdf .the Rule of Law Sector (to be compiled by obsolete before compilation. For this reason,
the Secretariat) and a National Strategy for it is essential that the Functional Review fit
the Rule of Law Sector (drafted by MoJ and in the broader working programme of the
approved by the Government). Ministry of Justice in order to ensure the
outcome of the process does not collide with
The problem of decentralization: ongoing other lines of activity, but enhances them.
parallel processes
Also operating in parallel is ‘’Justice 2020’’,
The main standing issue is the fact that the flagship initiative led by the Kosovo Minister
functional review triggered by Government of Justice in cooperation with the Chairs of
Decision No. 07/117 of 23 November 2016 the Kosovo Judicial and Prosecutorial
relays an extremely decentralized and Councils and supported by the EUSR/EUO,
uncoordinated approach. EULEX as well as the U.S. and UK Embassies
Since February, the Assembly has approved in Pristina3. During its launch event in
a number of laws directly linked to the scope September 2018, the initiative was
of the Review, thus proving the marketed as focusing on making the justice
decentralization which overpowers the system better performing and more
functional review process. Examples to take accountable, with the ultimate goal of
into consideration are the amendment on effectively serving its citizens. However,
the Law on the State Prosecutor (06/L-025), great uncertainty remains on what it means
on State Border control and surveillance in praxis, what is the main target(s) and
(06/L-013), on Mediation (06/L-009) and under which scope it is operating under.
on Conflict of Interest in discharge of Public Insofar is has proved to be yet another
Functions (06/L-011). Other relevant, flashy endeavor with no consequential
sectorial regulations include the Laws on results, further sending the message of
Asylum (06/L-026) and on Foreigners (06/L- Kosovo as a state with no concrete or lasting
036), the Law on Treatment of constructions agenda.
without permit (06/L-024) and on
Independent Oversight Board for Civil In the original terms of reference, it is noted
Service of Kosovo (06/L-048). Furthermore, in the concluding remarks that the
currently a new Criminal Code and a new functional review will not obstruct the
Criminal Procedure Code are being drafted established policy processes which will
by the Ministry of Justice. All of these continue in parallel to the revision –
initiatives have been taking place in parallel however the question remains on why the
to the execution of the Functional Review. It chosen, optimal approach was to launch a
remains unclear whether and to what extent different over-reaching process instead of
these developments have been taken into merging open-ended policies into one solid
consideration during the review process, framework of coordinated action. The fact
since they substantially alter the conditions that parallel processes remain hinders the
of work of a number of institutions related to efficiency of the functional review launched.
Justice and Law enforcement. This not only discredits Kosovo in matters of
It is thus worth remembering that, while the the Rule of Law, but more so means a loss
review takes place, the political and of momentum and a difficulty to deliver
administrative cycles do not stop. The since there is no single source of
Ministry of Justice is at the same time institutional pressure being applied, but
sponsoring a number of important initiatives
and the functional review must not be 3
EULEX Kosovo, ‘’EULEX at the launch of
unconnected, or its conclusions may well be Justice 2020’’, 26 September 2018, Available at:
http://www.eulex-kosovo.eu/?page=2,11,862.rather scattered efforts and many parallel improper alignment between law and
agendas. practice.
Bosnia and Herzegovina similarly undertook
Comparative outlook into review a review process to identify and analyze the
processes of other countries responsibilities and core functions of the
Ministries of Justice (MoJs) and other
In the region, other countries have institutions within the justice sector, in the
undergone functional review processes in first half of 20045. The aim was to plan and
similar terms as Kosovo. In this section we manage the operation of that sector at all
will offer a general outlook into the levels within the country, by assessing how
coordinated processes undertaken in the responsibilities are divided and the
Serbia, Bosnia and Herzegovina and functions performed. To a possible extent,
Romania in order to better evaluate the the review sought to compare their domestic
strengths and shortcomings of the Kosovar reality with the situation in other European
approach. countries. The process in BiH looked to
make recommendations that would allow
Serbia conducted a Judicial Functional the functional competencies of the MoJs
Review in the first half of 2014, covering the and other relevant institutions to be
developments occurred in the country since rationalized and reorganized to promote
20104. Its aim was to establish an analytical efficiency and to enhance performance.
baseline to assess the status of the judiciary
and steer future actions in order to enhance In 2013, Romania, already an EU Member
the functioning of the Courts based on solid State, also launched a review of its Rule of
data. The scope of this review was thus Law sector6. The review examined three
limited to the judiciary, which was assessed main issues related to the judicial system
in terms of external and internal performance, looking at both the individual
performance. External performance was agency level and the collective performance.
defined as the efficiency, quality and First, efficiency as measured by the
easiness of access to justice services, while timeliness of case dispositions and
internal performance revolved around productivity. Second, quality as indicated by
processes and arrangements, such as its corruption in the judiciary, the judicial
governance, financial and human resources system’s effectiveness in addressing
and the use of ICT means, as well as their corruption in the broader public sector, and
effect in service delivery. The assessment the extent to which there is uniformity in
executed by the World Bank on this topic legal interpretations by courts. And third,
was very focused in this service-delivery access referring to whether ordinary citizens
dimension. After review, they noted that the can and do use court services.
country should reconsider some
traditionally-pinpointed problems which were A Functional Review is, by definition, an
not backed by evidence, and focus on a assessment activity. Once the process has
number of issues that had not been
previously identified. That perspective 5
Functional Review of the BiH Justice Sector,
allowed finding gaps between the de iure March 2005, Available at: http://parco.gov.ba/wp-
and the de facto situation, usually due to an content/uploads/2016/09/functional-review-of-the-
justice-sector-in-bh.pdf
6
World Bank, ‘’Romania judicial functional
4
Open Bank Repository, ‘’Serbia Judicial review‘’, 28 October 2014, Available at:
Functional Review, 1 October 2014, Available at: http://documents.worldbank.org/curated/en/971981
https://openknowledge.worldbank.org/handle/1098 468293466653/Romania-judicial-functional-review
6/21531 . .been completed and a national strategy institutions. A matrix was designed for the
adopted, it is essential that action is taken collection of findings and conclusions on
based on the recommendations. For these matters in order to proceed in an
comparative purposes, the Romanian organized way. The second meeting, held
Functional Review was followed by extensive recently on 28 September 2018, continued
legal reforms, while the Serbian one gave discussions on all the sub-topics and the
way to a number of interventions at a micro- respective objectives set for each. It was
level to enhance service-delivery. Functional highlighted, for instance, that the MoJ has
reviews must be framed in a broader drafted a new Law on Enhanced
strategy and not remain an isolated program Competencies for Confiscation of Illegally
with no continuity. Acquired Assets which, once it enters into
force, will bring new responsibilities to the
Example of a thematic area in the review institutions that, in turn, require additional
process: the Anti-Corruption Action Pillar capacities and resources for proper
implementation. Another proposal derived
from the meeting regarded a requested that
One of the pillars of the functional review for
the Law on Declaration and the Descent of
the Rule of Law sector is Anti-Corruption
Assets be reviewed for, as is, it lacks
Action Pillar, for which a working group was
uniformity and the Agency Against
created. For a better understanding of the
Corruption exerts penalizations which don’t
works of the groups set up for the purpose
contribute to combating corruption.
of this review process, this section will lay
The importance of clear efficiency and
out the efforts of the working group of the
transparency in this particular pillar lies in it
sixth pillar, regarding anti-corruption
being one in which public pressure is high.
measures.
During the first meeting, it was agreed that a
Main issues pertaining to the Functional
preliminary analysis would be conducted on
matters of corruption, as well as the
Review process in Kosovo
prevention and fight against this
phenomenon. It would consist of a summary Unlike the other country cases, the Kosovar
based on conclusions and Functional Review has been framed in quite
recommendations from international and vague and ambiguous terms. All three of the
local organizations. From thereon, objectives abovementioned countries undertook
and measures were defined, such as similar processes as a part of a broader
strengthening inter-institutional coordination reform strategy or after an initial
in preventing and combating corruption, assessment recommended deeper review.
boosting the mechanisms for the In the case of Kosovo, both elements are
confiscation of illegally acquired property, missing given that the original Decision
improving the implementation of policies in states the purpose is to prepare a sectorial
the Public Procurement System (and therein strategy for the Rule of Law. Thus the work
harmonization of legislation with EU is ongoing in parallel to other processes
directives), strengthening measures to within the Ministry of Justice, raising a
prevent conflict of interest, and increasing number of questions regarding the technical
transparency on the financing of political adequacy of the process.
parties. Advancing and completing the legal
framework on the aforementioned sub- The first issue worth rising relates to delays
topics is the end goal, by means of harmful to the credibility of the process. Due
supplementing legal loopholes and avoiding to the long impasse in 2017 and the change
overlapping competencies between of government, the Functional Review onlystarted its work in March 2018, more than a The aim of the functional review according
year after the initial decision and less than 3 to the Ministry of Justice is to provide a
months before its formal deadline of June review of the whole legal system in order to
2018. The deadline arrived and passed with identify whether changes must be made or
the work still at an initial stage. In order to the status quo must be preserved. In
set a better precedent and higher standards consideration of these key issues, it is highly
of work conduct, the government should advisable that no new legal developments
make use of its prerogative under the should be pushed in Kosovo. Instead,
framework it established itself and set a priority should be on increased efficiency of
new, realistic deadline. the existing frameworks and a strict focus
Secondly, even though the formal purpose on implementation. In this way, the
remains upheld - creating a national strategy proposed targets for advancement and
and enhancing the implementation of the improvement are the processes and
legal framework - the procedures put in procedures, not further legal changes that
place (i.e. the working groups) appear more additionally disrupt efforts. Related to that,
focused on introducing new legal changes any following action should take into
instead of building on developments. This consideration the need of legal certainty and
could be linked to the unique policy-making institutional stability. In the last ten years
in Kosovo as a new state. In light of the since independence, the country has been
intense state-building process which engaged in a major state-building campaign
occurred before and after independence, in which creating new institutions and
policy-making in Kosovo is inherently linked introducing radical changes was the go-to
with creating and reshuffling institutions as approach. Despite any mature legal system
a whole, which has consequently become requiring such tweaks and patches, major
the instinctive approach of policy-makers. changes should be few and more far apart.
This approach puts the unhindered success
of the Review into question, as the Concluding Remarks
leadership must exert a proper balance
between improving efficiency and disrupting Proceeding from a short examination of the
the institutional setup. For instance, Functional Review of the Rule of Law sector
different reforms on the Judiciary and in Kosovo, this policy notes denotes that a
Prosecutorial Council have failed in the past systemic lack of coordination has critically
because the laws were amended too hindered the smooth execution and timely
quickly. assessment of the review. The functional
Furthermore, the lack on inclusivity in the review in Kosovo, unlike similar processes
review process could also disrupt the end undertaken in countries of the region,
goals. In the composition of the working appears as an isolated program while other
groups, there was a late incorporation of relevant legal changes and policies are
civil society and no presence from members developing in parallel.
of the opposition, nor international experts. As a new country with a track record of
The Parliamentary Committee on Legislation tendency for excessive policy-making, the
has not been involved in the process, question of legal certainty must start to be
although the end result has been put in the prioritized. Stability and consistency of laws,
legal field and is to include proposals to reforms, structures and processes must
amend laws in the framework of the prevail over the need to revitalize entire
Assembly. institutions or frameworks. This would
certainly also serve the purpose of the
review of the rule of law sector, which is oneof focusing on its functionality and in order qualitative data. Regarding the overall
to increase the efficiency, transparency and approach taken, Kosovo presents many
accountability of the justice system. different sectorial strategies and policies, as
noted in the official Terms of Reference
In light of all the issues raised throughout document itself.
this note, further discussion on the
development of the process is encouraged Domestic affairs, such as the present one
and, hopefully, fueled – a focus could fall on on the functional review of the Rule of Law
which elements of the original setup have sector in the Republic of Kosovo, may be an
had a positive impact, how could they be internal matter but they are key in projecting
boosted, and which changes could be an external image. The process has been
implemented to better proceed with the uncoordinated thus far, to which this note
review. For instance, the review should not calls attention to in order to encourage
disregard Administrative, Commercial and discussion and improvement. Moving
Civil jurisdictions, for often the privileged forward, this policy note sought to lay out
jurisdiction in such endeavors is the criminal that the feasibility of reform success lies in a
one. Thus far, the review has focused mainly coordinated effort designed into a single,
on the legal and regulatory framework with detailed revision framework. In this way the
the aim of proposing specific normative pressure exerted is targeted and the work is
amendments from a mostly internal, dutifully geared. Most importantly, such an
institutional perspective. Moving forward, it approach acclaims Kosovo as a functioning
would also be interesting to consider the state in due command of its domestic
external dimension of Justice (i.e. service- judicial affairs and policy-planning.
delivery and user satisfaction). Moreover, a
substantial oversight is latent with regards
to the judiciary in the Serb Northern areas
and respective the integration in the judicial
system, a matter which deserve more
attention.
The Concept Document states the need for
an evaluation of legal framework and
strategies according to quantitative and“This grant is financed by the Democratic Society Promotion (DSP) project - funded by the Swiss Agency for Development and Cooperation (SDC) and the Danish Ministry of Foreign Affairs (DANIDA), and managed by the Kosovo Civil Society Foundation (KCSF)”
Policy Notes
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