Archives for August 2015

After MPs in Pristina voted to set up a new court to try Kosovo Liberation Army ex-guerrillas, BIRN examines how it will operate, who it can prosecute and for which offences./
By Marija Ristic/
The 50-page Law on Specialist Chambers and Specialist Prosecutor’s Office, which was negotiated between the EU and Kosovo, was finally passed this week by the Kosovo parliament after months of bitter arguments, street protests, frenzied media speculation and delays caused by political opposition to the legislation that will see former KLA guerrillas – who are seen as heroes of the liberation struggle in Kosovo – put on trial.
The establishment of the so-called ‘specialist chambers’ comes after the EU’s Special Investigative Task Force in July last year published the findings of its three-year investigation into the allegations initially made by Council of Europe rapporteur Dick Marty, who claimed that crimes against civilians such as kidnapping, torture and organ-harvesting were committed by KLA members during the Kosovo conflict.
The EU task force said it conducted the most comprehensive investigation so far of crimes perpetrated by KLA, explaining that as a result it will be in the position to indict high-level perpetrators when the new court starts operating.
Since then the EU and US have been pushing the Kosovo government to ensure that the necessary constitutional amendments and laws go onto the statute books. They believe the court is needed because the Kosovo judiciary would be unable or unwilling to properly prosecute high-ranking former KLA figures, and the EU’s rule-of-law mission, EULEX, does not have the capacity to do so.
The first vote in the Kosovo parliament failed last month due to lack of support among MPs, but after further pressure, including the threat that the UN Security Council could set its own court to try former KLA fighters, they were finally approved on Monday.
The court, which is expected to be fully functional in the course of six months to a year, will address allegations that KLA fighters were involved in the killings, abductions, illegal detentions and persecution of Serbs, Roma and Kosovo Albanians believed to be collaborators with the Serbian regime or political opponents of the KLA leadership during and after the 1998-99 conflict.

Detentions and organ-harvesting
The new Law on Specialist Chambers and Specialist Prosecutor’s Office establishes and regulates the organization, functions and jurisdiction of the new court.
According to the legislation, which BIRN has seen, the ‘specialist chambers’ will be independent from Kosovo judiciary, but will be part of Kosovo’s justice system. The law says that “specialist chambers shall be attached to each level of the court system in Kosovo: the Basic Court of Pristina, the Court of Appeals, the Supreme Court and the Constitutional Court”. The chambers will have primacy over all other courts in Kosovo.
The court will be located in Kosovo but also in a so-called ‘host state’. The EU has already asked Netherlands to be the host state for the court and it is expected that Kosovo and the Netherlands would soon sign an agreement which will regulate the functioning of the court. According to the law, “the court may sit elsewhere on an exceptional basis if necessary”.
The specialist chambers will have jurisdiction over crimes that occurred between January 1, 1998 until December 31, 2000, and that either were committed or commenced in Kosovo, meaning it can also prosecute crimes committed in Albania, as many of the prisoners who were taken away by KLA were later detained in camps in north Albania.
The chambers will be able to prosecute crimes against humanity, including murder, extermination, enslavement, deportation, imprisonment, torture, rape, enforced disappearance and other persecution on political, racial, ethnic or religious grounds. It will also prosecute war crimes and other violations – including the destruction of civilians’ property, towns, villages and religious buildings.
In Article 14 of the legislation, it specifically states that it can also prosecute a crime it describes as “subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by medical, dental or hospital treatment”.
This provision has been specially added to address potential cases of alleged organ-harvesting, after the EU task force concluded that there was evidence that this happened, but only on a very limited scale. “A small number of individuals were killed for the purpose of extracting and trafficking their organs,” the task force report said.
It also cautioned however that investigators “encountered significant challenges in obtaining such evidence”, and suggested that it would be difficult to raise indictments for alleged organ-trafficking.
The new court is widely seen in Kosovo as an insult to the Kosovo Liberation Army as a whole, and to its war for freedom from repressive Serbian rule, but the law says it will deal only with individual criminal responsibility.
Many believe that top Kosovo politicians will end up in the dock, including Foreign Minister Hashim Thaci, who is the former political chief of the KLA. The Council of Europe report levelled serious allegations of criminality against Thaci, which he strongly denied.
But the law makes it clear that no official is out of bounds for prosecution by the new court. “The official position of any accused person, including the head of state or government or a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment,” it says.

International judges, EU funding
The specialist chambers will consist of the two main institutions – the chamber and the registry. The chamber will include a basic court chamber, court of appeals chamber, supreme court chamber and constitutional court chamber. All judging panels at all court levels will be composed of three international judges.
The registry will include a defence office, victims’ participation office (which will represent victims’ interests), witness protection and support office, detention management unit and ombudsman’s office. The official languages of the court will be Albanian, Serbian and English.
The specialist prosecution office will be independent and it is expected that the lead prosecutor of the EU’s Special Investigative Task Force, David Schwendiman, will take over once the office is established. His will have a four-year mandate with a possible extension. The prosecution will also have police with the authority and responsibility to any exercise powers given to Kosovo police.
The prosecution can, in exceptional cases, use evidence provided by the International Criminal Tribunal for the Former Yugoslavia and the Kosovo courts. The status, privileges and immunities of those who work for the new court will be the same as the ones already enjoyed by the EU rule-of-law mission in Kosovo, EULEX.
The court’s costs will not be paid by Kosovo, and are expected to be funded by the EU. The annual budget is not mentioned in the legislation. The court’s archive and documents will be held in a dedicated depository outside Kosovo.
When it comes to detention, police will have 48 hours from the arrest to bring the suspect to the judge who will decide on dentition. The detention facilities of the court will be in the ‘host state’ – the Netherlands. There will be also a possibility of bail with release and house detention and prohibition of approaching specific places.
The maximum sentence the chambers will be able to impose is life imprisonment. Defendants can appeal against the initial verdict, but will not have a new trial. According to the law, the so called court of appeals panel “may affirm, reverse or revise judgement” of the trial panel. The law also envisages third-instance appeals proceedings.
Defendants who are found guilty will serve their sentence in prisons in states willing to accept them. The same model has already been used by the International Criminal Tribunal for the Former Yugoslavia, but the new court has yet to sign agreements with countries that might be interested, although is expected that these will all be within the EU.(Courtesan:BIRN)