Judiciary in Kosovo

Who Will Be the Judges?

Apart from ethnic intolerance and lack of trust, a great problem in establishing the judicial system in Kosovo is the permanent lack of professional cadre: majority of members of the legal profession of Albanian ethnic origin are engaged in much more profitable business of legal counsel, and it is very difficult to find jurists - Serbs who would agree to take any such posts because of the situation in Kosovo.

AIM Podgorica, 23 January, 2000 (By AIM correspondent from Belgrade)

Seven long months after the arrival of international missions, it seems that Kosovo will finally get its judicial system which might warrant establishment of some kind of order in the province. Torn between chronic lack of money, incessant conflicts between the Serbs and the Albanians and criticism of successfulness of the mission, along with passing the criminal law, the officials of UNMIK decided to appoint about 400 judges who will form the backbone of the future unbiased judiciary of Kosovo, which will as claimed by the sources in UNMIK, end the cycle of violence and mark the beginning of a new era in resolving the Kosovo crisis.

Based on a decision of the head of UNMIK Bernard Kouchner, the first group of 297 judges and investigation judges, along with 238 judges-jurors elected from among more than 750 candidates, will take oath in the next few days and appointing of the second round of judges is announced for the beginning of March after which the planned number of 400 judges will be reached. At the same time, legal experts of the UN drafted the criminal law which should be implemented by the newly appointed incumbents of judicial posts which is one of the greatest problems UNMIK was faced with so far.

Establishment of the judicial system was the pioneering undertaking of the first UN administrator in Kosovo Sergio Viero de Melo, who in the end of June last year, immediately after the arrival of the mission nominated judges of the first court in Kosovo founded under the protectorate of the UN. This tribunal consisted of five Albanians, two Serbs and one Turk, but after a short time it became clear that nothing will come out of the multiethnic court, or of any sort of multiethnic agencies, and that the whole process should be organised in a completely different manner.

The attempt to do something of the kind followed a few months later when Bernard Kouchner arrived, who introduced a series of changes in the completely unorganised judicial system with high hopes that the Serbs and the Albanians would be able to cooperate at least in this, which seemed at the time to be the crucial project for the future of Kosovo. The first major problem arose after the decision of Albanian judges not to administer justice pursuant the provisions of the laws which were in force before 24 March last year, that is, before the beginning of NATO air strikes against FR Yugoslavia. Their complaints against these laws were mostly political in nature although at the same time they stressed that "this legal document reminded them of repression in conditions of which they lived at the time when the territory of Kosovo was controlled by Serbian authorities".

Limited by the provisions of UN Security Council Resolution 1244, representatives of international missions reached a compromise and in order to make the majority population, Kosovo Albanians, more cooperative, they decided to use the 1989 law, but they previously eliminated from it all provisions which were contrary to international standards, which primarily refers to contacts between the legal advisors and the defendants. Return to the 1989 law, however, caused thunderous reactions of the Serb population which with fear of the arrested Serbs of revenge of Albanian judges and lack of trust in legal advisors of the defence of Albanian ethnic origin led to complete blockade of the judicial system in Kosovo.

Legal experts of UNMIK, however, believe that except for principled complaints, the Serbs have no reason for concern because these two laws are identical in 90 per cent of the provisions while on the other hand, the Serbs claim that it is illogical to introduce a law that was previously in force because it could lead to a legally paradoxical situation in which perpetrators of criminal acts would be tried pursuant laws which had not been in force at the rime the act was committed. Regardless of the wish of the Albanians and criticism of the Serbs, the draft of the new law founded on the 1989 law is already written and international police will finally get a legal document which they could rely on.

As sources in UNMIK state, there is also the unresolved problem between the Serbs and UNMIK in Kosovska Mitrovica because the Serbs over there threaten that they would organise the judicial system of their own since they feel neglected in the division of posts in prosecutors' offices, in district and municipal courts. Because of the manner in which judges were appointed they organised protests demanding that the UN administrator change the decision on the election of judges in this city, but they also announced that should Kouchner fail to change his decision soon, they would "prevent the work of courts". The basis of the conflict of the Serbs in Mitrovica and UNMIK lies in the fact that according to Kouchner's decision, out of 28 judges, 23 will be the Albanians, three will be the Serbs and two Muslims.

After additional negotiations with representatives of the international community the Serbs from Mitrovica decided the day before yesterday to interrupt protests for a week because of appointment of the new judicial agencies. The reason for this, it was explained by representatives of the Serb negotiating team, is an agreement with UNMIK and OSCE that out of five leading posts in the judiciary three belong to the Serbs and two to the Albanians.

In municipal courts in Vucitrn and Srbica, all the judges are Albanians and in Zvecani and Zubin Potok, municipalities populated mostly by the Serbs, judges were not even appointed.

About the problems of the judiciary in Mitrovica, spokesman of the Serb National Council Nikola Kabasic says that it is "Kouchner's aim to remove the Serbs from the sources of information, due to which the most sxtremist Albanians were elected presidents of courts and the prosecutor's office who were at the time of socialism persecuted by the authorities because of their nationalistic stands". The Albanians, on the contrary, believe that majority of the judges of Serb ethnic origin should not hold any posts in the judiciary primarily because of their participation in "dictated trials of Kosovo Albanians at the time when Kosovo was ruled by the Serbian regime", which like so many times before is just part of the saga on mutual intolerance of the two ethnic groups in Kosovo.

A great problem in the establishment of the judicial system of Kosovo is also the permanent lack of professional cadre because majority of experts in the legal profession of Albanian ethnic origin work as legal advisers which is much more profitable and it is very difficult to find experts for law among the Serbs who would for security reasons in the province be interested in taking up any posts.

The disproportion between the number of crimes and trials in Kosovo seem to be the best illustration of the effect on the success of UN mission of internal relations between the ethnic communities and lack of money, but also of the fact that although more than four thousand persons have been arrested in the province since June last year, only about 200 are in jail, while at the same time, just in Prizren, there were only four trials.

Rade Maroevic

(AIM)