Abstract
The Kosovo Constitution provides for a strong regime of domestication of international human rights instruments and respect for international law. Against that background the jurisprudence of Kosovo Constitutional Court and of EULEX international judges embedded in Kosovo courts reveals a rich interaction with United Nations law, international criminal law, state succession and international human rights law. Their practice in the latter area shows a level of conformity as well as inconsistency with international conventions and case-law of the European Court of Human Rights. Whereas, war crimes adjudication is associated with significant controversies regarding non-retroactivity of law, nullum crimen sine lege and the place of customary international law in the Kosovo legal order. The jurisprudence pertaining to state succession, extradition and terrorism uncovers differences between judicial and executive branches in their responses to some complex legal and political questions in the aftermath of Kosovo’s independence.
An unprecedented case emanating from a refusal by EULEX international judges to recognise and apply post-independence Kosovo laws, allegedly contradicting certain United Nations obligations, has raised a heated debate between the Constitutional Court and EULEX international judges on fundamental international and domestic constitutional norms.
While observing a scarce application of international law by domestic judges of courts of general jurisdiction the analysis suggests tools that could be used in order to overcome the inherited judicial and educational problems and to assist in installing a sustainable and competent local judiciary capable of complying with international legal standards.
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- 1.
Posner (2009), p. 111. For a categorisation of constitutions that permit the incorporation of international law, see particularly Cassese (1985), p. 394. The text of the Constitution and its amendments is available in the Official Gazette of the Republic of Kosovo at http://gazetazyrtare.rks-gov.net. Accessed 20 April 2013.
- 2.
- 3.
On the Ahtisaari Status Proposal, see http://www.unosek.org/unosek/en/statusproposal.html. Accessed 15 May 2013. For more on the Ahtisaari Status Proposal, see Weller (2009), pp. 244–249.
- 4.
- 5.
All decisions of the Kosovo Constitutional Court are published in three languages: Albanian, Serbian and English and are available on the Constitutional Court’s official web site http://www.gjk-ks.org. Accessed 11 May 2013.
- 6.
The Kosovo Constitutional Court is composed of six domestic and three international judges.
- 7.
On the establishment and the mandate of EULEX, see the European Union Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX Kosovo, OJ 2008 L 42. For the jurisdiction of EULEX international judges as provided in Kosovo law, see the Law on the Jurisdiction, Case Selection and Case Allocation of EULEX international judges and Prosecutors in Kosovo; Law on the Special Prosecution Office of the Republic of Kosovo.
- 8.
The vast majority of the decisions of EULEX international judges are published in English and at least one of the official languages in Kosovo, namely Albanian or Serbian. Decisions of EULEX international judges (including mixed panels) are available on the EULEX official website http://www.eulex-kosovo.eu/en/judgments/. Accessed 11 May 2013.
- 9.
Upon the adoption of Law No. 03/L-199, as of January 2013, the Kosovo court system disbanded from the old Yugoslav court structure and significantly transformed the organisation of the courts. The Law on Courts provides that all first-instance cases are adjudicated in specialised Departments of the Basic Courts, and appealed second-instance cases are adjudicated in one single Court of Appeals located in Prishtina. In the first and second instance, the Kosovo Courts operate with the Department for Serious Crimes, General Department, Department for Administrative Matters, Department for Commercial Matters, and Department for Minors. The Supreme Court deals with third-instance cases, extraordinary legal remedies and renders opinions related to the uniformity of court practices in Kosovo. The Supreme Court also includes the Appeals Panel of the Kosovo Property Agency and the Special Chamber of the Supreme Court, the judges of which are part of the Supreme Court.
- 10.
The judgments of the Supreme Court of Kosovo are largely accessible on the official website of the Supreme Court of Kosovo, while the decisions of other Kosovo courts of general jurisdiction are hardly accessible.
- 11.
Article 19(1) of the Constitution. On the instrument of ratification by the Kosovo institutions, see Article 18 of the Constitution.
- 12.
Article 18(4) of the Constitution. See also Articles 19, 54 and 62 of the Vienna Convention on the Law of Treaties (VCLT).
- 13.
See, e.g., Joost Pauwelyn who employs the term ‘legally binding norms’ as a synonym for all sources of international law ‘as they may be invoked before an international court or tribunal’. Pauwelyn (2006), pp. 7, 89–91.
- 14.
See, e.g., SC Case No 386/10, Decision of the mixed panel of EULEX international judges, Supreme Court of Kosovo, 7 September 2010, at p. 6.
- 15.
See, e.g., the Italian Constitution of 22 December 1947 as a classical model. In the application of EU law and international law, Italy applies Article 11 of the Constitution which provides that Italy agrees to limitations of sovereignty where they are necessary to allow for a legal system of peace and justice between nations, provided the principle of reciprocity is guaranteed; it promotes and encourages international organisations furthering such ends. This provision is inspired by the UN system and by the obligations emanating from the UN Charter. However, Italy continued to utilise Article 11 of the Constitution to allow for the supremacy and direct effect of EU law.
- 16.
Article 2, Annex I of the Comprehensive Proposal for the Kosovo Status Settlement.
- 17.
The Constitution did not incorporate social, economic and cultural rights (save for the provisions of the UDHR). For an overview see, e.g., Istrefi (2013), pp. 271–272.
- 18.
Garlicki (2005), p. 263.
- 19.
Weller (2009), p. 257.
- 20.
Ibid, p. 245.
- 21.
CC, 18.03.2010, Case No. KO 01/09, Qemailj Kurtisi v. Municipal Assembly of Prizren. Judgment of the Constitutional Court of the Republic of Kosovo, para 42. The decision is available at the http://www.gjk-ks.org/. Accessed 12 April 2013.
- 22.
Article 10(2) of the Law on International Agreements (Law No. 2004/14) provides that International Agreements shall be ratified by a law by a two-thirds (2/3) vote of all deputies of the Assembly of the Republic of Kosovo. The Law is available in the Official Gazette at http://gazetazyrtare.rks-gov.net. Accessed 12 April 2013.
- 23.
Regarding the procedure for the possibility to file referrals by the deputies of the Assembly of Kosovo, see Article 113 of the Constitution.
- 24.
Articles 113(3) and 113(4) of the Constitution.
- 25.
Resolution 1244, UN Doc S/RES/1244; 54 UN SCOR, UN Security Council, 10 June 1999; UNMIK Regulation No. 1999/24 on the Law Applicable in Kosovo (12 December 1999) as amended by the UNMIK Regulation No. 2000/59 (27 October 2000) (‘UNMIK Regulation 1999/24 as amended’) and the UNMIK Regulation No. 2001/9 on a Constitutional Framework for Provisional Self-Government in Kosovo (15 May 2001) (‘UNMIK Constitutional Framework’).
- 26.
Law No. 03/L-067 on the Privatisation Agency of Kosovo (21 May 2008), entered into force 15 June 2008.
- 27.
Article 5 of Law No. 03/L-067 on the Privatisation Agency of Kosovo (21 May 2008), entered into force 15 June 2008.
- 28.
SC, 16.10.2009, Decision No. SCEL-09-0003, Special Chamber of the Supreme Court of Kosovo, cited in Decision No. ASC-09-089 of the Appellate Panel of the Special Chamber of Supreme Court of Kosovo, 4 February 2010 Decision No. ASC-09-089 of the Appellate Panel of the Special Chamber of Supreme Court of Kosovo, 4 February 2010, p. 1.
- 29.
Article 102(3) stipulates: Courts shall adjudicate based on the Constitution and the law.
- 30.
Constitutional Review of the Decision of the Special Chamber of the Supreme Court of Kosovo ASC-09-089, Case No. KI 25/10, Judgment of the Kosovo Constitutional Court, ILDC 1606 (KO 2011), 31 March 2011, para 53.
- 31.
Constitutional Review of the Decision of the Special Chamber of the Supreme Court of Kosovo ASC-09-089, Case No. KI 25/10, Judgment of the Kosovo Constitutional Court, ILDC 1606 (KO 2011), 31 March 2011, para 61.
- 32.
Accordance with international law of the unilateral declaration of independence in respect of Kosovo, Advisory Opinion, ICJ Reports 2010, p. 403, 10 July 2010, para 54.
- 33.
Decision of the Special Chamber of the Supreme Court of Kosovo on Privatization Agency of Kosovo Related Matters SCA-09-0042, SOE XX, XX v. A.A., XX, 29 November 2012, at 4.
- 34.
Ibid.
- 35.
Ibid.
- 36.
Ibid, p. 5.
- 37.
2012 Annual Report of the Kosovo Constitutional Court, pp. 29–30, available at http://gjk-ks.org/repository/docs/RAPORTI%20VJETOR%202012.pdf. Accessed 12 May 2013.
- 38.
CC, 26.02.2013, Case KI 41/12, Gëzim dhe Makfire Kastrati v. Municipal Court in Prishtina and Kosovo Judicial Council, Judgment of the Constitutional Court of the Republic of Kosovo.
- 39.
Ibid, para 58.
- 40.
Ibid, para 59.
- 41.
Ibid, para 63.
- 42.
SC, 5.12.2011, Case KI 108-2010, Fadil Selmanaj v. Judgment A. No. 170/2009 of the Supreme Court, Judgment of the Constitutional Court of the Republic of Kosovo.
- 43.
Ibid, para 3.
- 44.
Ibid, para 3.
- 45.
Bulletin of Case-law No. 2 (2011) Publication of the Constitutional Court of Kosovo, p. 579.
- 46.
CC, 5.12.2011, Case KI 108-2010, Fadil Selmanaj v. Judgment A. no. 170/2009 of the Supreme Court, Judgment of the Constitutional Court of the Republic of Kosovo, para. 75.
- 47.
Ibid, paras 58–59.
- 48.
CC, 22.12.2010, Case No. KI 56/09, Fadil Hoxha and 59 Others v. Municipal Assembly of Prizren, Judgment of the Constitutional Court of the Republic of Kosovo, paras 27–30.
- 49.
Ibid, paras 66 and 71.
- 50.
Ibid, para 65.
- 51.
Ibid.
- 52.
Ibid, paras 62–64. The Constitutional Court further took note of the right to a healthy environment by inserting pertinent provisions of the Aarhus Convention, the Rio Declaration on Environment and Development and Recommendation 1614 (2003) of the Parliamentary Assembly of the Council of Europe.
- 53.
CC, 30.10.2010, Case No. KI 06/10 Valon Bislimi v. Ministry of Internal Affairs, Kosovo Judicial Council and Ministry of Justice. Judgment of the Constitutional Court of the Republic of Kosovo, para 78.
- 54.
CC, 23.06.2010, Case No. KI 40/09 Imer Ibrahimi and 48 Other Former Employees of the Kosovo Energy Corporation v. 49 Individual Judgments of the Supreme Court of the Republic of Kosovo, Judgment of the Constitutional Court of the Republic of Kosovo, paras 5–6.
- 55.
Ibid.
- 56.
Ibid, para 41.
- 57.
For a critical approach to the application of the principle of continued violation in the President Sejdiu case, see Istrefi (2013), pp. 275–277.
- 58.
CC, 28.09.2010, Case No. KI 47/10, Naim Rrustemi and 31 other Deputies of the Assembly of the Republic of Kosovo v. His Excellency, Fatmir Sejdiu, President of the Republic of Kosovo, Judgment of the Constitutional Court of the Republic of Kosovo.
- 59.
Article 88 of the Kosovo Constitution provides: 1. The President shall not exercise any other public function. 2. After election, the President cannot exercise any political party functions.
- 60.
CC, 28.09.2010, Case No. KI 47/10, Naim Rrustemi and 31 other Deputies of the Assembly of the Republic of Kosovo v. His Excellency, Fatmir Sejdiu, President of the Republic of Kosovo, Judgment of the Constitutional Court of the Republic of Kosovo, paras 32–33.
- 61.
Ibid, para 34.
- 62.
In support of its view, the Constitutional Court could have made reference to Papamichalopoulos and Others v. Greece, ECHR, Judgment of the Court (Chamber) of 24 June 1993, at paras 40 and 46; Agrotexim and Others v. Greece, ECHR, Judgment of the Court (Chamber) of 26 September 1995, at paras 56–58; Loizidou v. Turkey, ECHR, Judgment of the Court (Chamber) of 18 December 1996, at paras 26–64.
- 63.
Schabas (2009), p. 78. See also Case No. IT-01-47-PT, Prosecutor v. Hadžihasanović, Alagić and Kubura, Trial Chamber, Decision on Joint Challenge to Jurisdiction, 12 November 2002; Case No. IT-01-47-AR72, Prosecutor v. Hadžihasanović, Alagić and Kubura, Appeals Chamber, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, paras 22, 26–29 and 31; Mettraux (2009), pp. 96–97.
- 64.
Both the EU and Kosovo law on the mandate of EULEX international judges provide for obligations to apply Kosovo law. See Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX Kosovo, OJ 2008 L 42, Article 3(d); the Law on the Jurisdiction, Case Selection and Case Allocation of EULEX International Judges and Prosecutors in Kosovo, Article 3; the Law on the Special Prosecution Office of the Republic of Kosovo, Article 16.
- 65.
UNMIK Regulation No. 1999/24 as amended by the UNMIK Regulation No. 2000/59 on the Law Applicable in Kosovo.
- 66.
DC, 16.07.2003, Case No. 425/2001 Latif Gashi and others, Decision of the District Court of Prishtina, pp. 22–26.
- 67.
- 68.
SC, 21.07.2005, AP-KZ No. 139/2004 Latif Gashi and others, Decision of the Supreme Court, panel of UNMIK judges, p. 6.
- 69.
Ibid, pp. 6, 8.
- 70.
Ibid, p. 6.
- 71.
See chronologically the decisions of the mixed panel of EULEX international judges in Gashi and others:
-
DC, 02.10.2009, Case P No 526/05, Decision of the District Court of Prishtina;
-
SC, 26.01.2011, Case Ap-KZ No 89/2010 Decision of the Supreme Court of Kosovo.
On 7 June 2013, a mixed panel of EULEX international judges of the Supreme Court of Kosovo took a new decision in Gashi and others. While the judgment is not yet available, an official press release and a video confirm that the panel of judges upheld the 2011 judgment of the Supreme Court of Kosovo. Available at http://www.eulex-kosovo.eu/en/pressreleases/0452.php. Accessed 4 September 2013.
-
- 72.
SC, 26.01.2011, Case Ap-KZ No 89/2010 Decision of the Supreme Court of Kosovo, para 111.
- 73.
DC, 02.05.2012, Case No 425/11, Decision of the District Court of Prishtina, paras 146–147.
- 74.
DC, 23.11.2011, Case P No. 371/10, Decision of the District Court of Prishtina, para 96.
- 75.
DC, 23.11.2011, Case P No. 371/10, Decision of the District Court of Prishtina, para 99; DC, 9.11.2010, Case P No. 285/10, District Court of Peje, p. 13.
- 76.
DC, 29.07.2011, Case P No. 45/10, Decision of the District Court of Mitrovica, para 218.
- 77.
DC, 02.05.2012, Case No 425/11, Decision of the District Court of Prishtina, para 33.
- 78.
UNMIK Regulation No. 1999/24 as amended by UNMIK Regulation No. 2000/59 on the Law Applicable in Kosovo.
- 79.
Ibid, Section 1.3.
- 80.
Articles 22 and 52 of the Kosovo Constitution.
- 81.
Boban Šimšić v. Bosnia and Herzegovina, ECHR, Judgment of the Court (Chamber) of 10 April 2012, at para 23.
- 82.
DC, 02.05.2012, Case No. 425/11, Decision of the District Court of Prishtina, para 162.
- 83.
For another analysis of this case, see Zane Ratniece, PN KR No. 386/2010, ILDC 1964 (XK 2010). International Law in Domestic Courts Reports, Oxford University Press, 18 February 2013.
- 84.
SC, 7.09.2010, Case No 386/10, Decision of the Supreme Court of Kosovo, p. 1.
- 85.
Ibid, p. 2.
- 86.
Ibid, p. 4. The English version of the Kosovo Constitution, in Article 35(4) reads ‘Citizens of the Republic of Kosovo shall not be extradited from Kosovo against their will except for cases when otherwise required by international law and agreements’. The authors are referring to the language of Article 35(4) of the Constitution as formulated by the OSPK and confirmed by the Kosovo Supreme Court. The Supreme Court of Kosovo considered that the authentic Albanian version of the Kosovo Constitution provides for a different language and it must apply in the present case.
- 87.
SC, 7.09.2010, Case No 386/10, Decision of the Supreme Court of Kosovo, p. 5. See also SC, 30.01.2006, Case PN-KR 333/05, pp. 5–8 of the English version.
- 88.
SC, 7.09.2010, Case No. 386/10, Decision of the Supreme Court of Kosovo, p. 5.
- 89.
SC, 7.09.2010, Case No. 386/10, Decision of the Supreme Court of Kosovo, p. 6.
- 90.
Ibid.
- 91.
Ibid, p. 7.
- 92.
Ibid, p. 8.
- 93.
Ibid.
- 94.
Ibid, p. 9.
- 95.
See e.g. Slovenia in the chapter by Janja Hojnik, Judicial Application of International and EU Law in Slovenia
- 96.
Some of these concerns are addressed in the EULEX Manual on selected topics of criminal procedure. See EULEX International Judges Peeck et al. (2012). For the reference to the ECHR and ECtHR, see particularly pp. 101–105, 127–129 and 134–149.
- 97.
DC, 21.03.2012, Case P No. 425/11, case against Arben Krasniqi et al., Ruling on admissibility of Agim Zogaj’s statements and diaries (also known as witness X), District Court of Prishtina, para 2.
- 98.
Ibid, paras 31–33.
- 99.
Ibid, para 26.
- 100.
Ibid, para 27.
- 101.
Ibid, para 34.
- 102.
Ibid, para 35.
- 103.
SC, 20.11.2012, Case Ap.-Kz. No. 453/12, Ruling of the Supreme Court of Kosovo, paras 36–40; see also SC, 11.12.2012, Ap.-Kz. No. 527/12, Ruling of the Supreme Court of Kosovo, paras 31–50.
- 104.
See, e.g., supra note 15, at 3; Case KA No. 417/11, Blerim Devolli et al., Ruling upon appeals against a ruling on confirmation of indictment and admissibility of evidence, mixed panel of EULEX international judges of the District Court Prishtina, 22 March 2012, at paras. 9–10.
- 105.
DC, 3.12.2012, Case Ap.-Kz. No. 116/12, Judgment of the District Court of Prishtina.
- 106.
Ibid, para 30.
- 107.
Ibid, para 32.
- 108.
Ibid, para 33.
- 109.
Ibid, para 34.
- 110.
SC, 13.04.1012, Case PKL-KZZ-137/11, Judgment of the Supreme Court of Kosovo, p. 2.
- 111.
Ibid, p. 3.
- 112.
Ibid.
- 113.
Ibid, p. 3.
- 114.
SC, 9.10.2002, Case AP—KZ No. 76/2002 against Ruzhdi Saramati, Decision of the panel of UNMIK judges of the Supreme Court of Kosovo, para 39. On the application of the ECHR and ECtHR case-law, see also Case AP No. 209/2002 against Xhavit Hasani, Verdict of the panel of UNMIK judges of the Supreme Court of Kosovo, 13 August 2002, p. 7; Case AP—KZ No. 263/2002 against Milorad Blagojevic, Decision of the panel of UNMIK judges of the Supreme Court of Kosovo, 2 April 2003, p. 6.
- 115.
With regard to the non-compliance of Kosovo courts of general jurisdiction with the ECHR, see, e.g., OSCE (2012) Report on execution of judgments. http://www.osce.org/kosovo/87004. Accessed 19 September 2012; OSCE Report on evidentiary procedure in civil cases in Kosovo (2011). http://www.osce.org/kosovo/83301. Accessed 19 September 2012, pp. 10–16; OSCE Report on confirmation of indictment concerns (2012) Issue 8. http://www.osce.org/kosovo/73711. Accessed 19 September 2012, pp. 1–4.
- 116.
Basic Court, 29.01.2013, Case PKR.N.14/13, Basic Court of Ferizaj—Serious Crimes Department, p. 12.
- 117.
Judge Bashkim Hyseni, President of Ferizaj Basic Court (former Ferizaj Municipal Court) has made references to ECtHR case-law in his court decisions. In cases KP no. 33/11 and KP no. 100/12, Judge Hyseni explains the ECtHR’s interpretation of the concept of ‘reasonable suspicion’ by making reference to the case Fox, Campbell and Hartley v. The United Kingdom, ECHR, Judgment of the Court of 30 August 1990, at para 32. In the third case, P no. 355/12 related to measures to ensure a defendant’s presence, Judge Hyseni made reference to the case I.A v. France, ECHR, Judgment of the Court of 23 September 1998. For references to the ECtHR case-law concerning the interpretation of measures to ensure a defendant’s presence, the principle in dubio pro reo and presumption of innocence, see also the decisions of Judge Agim Maliqi from the Basic Court of Ferizaj, PKR N. 38/13; PKR N.9/2013-P94/12 PR1.
- 118.
Oeter (2001), pp. 871, 880.
- 119.
Simma et al. (1997), p. 107.
- 120.
See generally Malcolm (1998).
- 121.
- 122.
Many international organisations have offered assistance to support the reforms undertaken in the field of legal education in Kosovo by supporting initiatives for the revision of educational curricula, advancing legal skills, organising legal clinics, legal commentaries, etc., such as the USAID, European Commission, DFID, GIZ, etc.
- 123.
Interview with the Director of the Kosovo Judicial Institute, Mr Lavdim Kransiqi, January 2013. See also the OSCE second review of the criminal justice system (1 September 2000 to 28 February 2001) which recommended that the KJI should provide more comprehensive training on the application of international human rights law in the criminal justice context to both local and international judges and prosecutors. The report is available at http://www.osce.org/kosovo/13043. Accessed 12 May 2013.
- 124.
Interview on 18 April 2013 with Prof. Dr. Qerim Qerimi, Vice-Dean for Academic Affairs of the Law Faculty of the University of Prishtina.
- 125.
The Bar examination consists of a written and verbal part. In the written part of the examination, practical assignments are given from criminal and civil law. The oral part of the examination consists of these subjects: (a) Principles, constitutional structures and judiciary organisation; (b) Criminal law (material and procedural); (c) Civil law (material, procedural, family, hereditary and obligatory); (d) Trade law (economic); (e) Labor law; (f) Administrative law, and (g) International law and European Union law on human rights. See Law No. 02/L-40 on the Bar Exam.
- 126.
The Initial Legal Education Programme (ILEP) is a training programme dedicated to potential candidates for future judges and prosecutors. The ILEP programme consists of an intensive 15 month training programme with a number of training modules. Upon completion of this programme, candidates are professionally prepared and ready for the function of judge or prosecutor.
- 127.
Law on the Establishment of the Kosovo Judicial Institute, Law No. 02/L-25. The KJI is responsible for (a) the training of office holders and potential office holders in the judiciary (judges and prosecutors); (b) the assessment and organisation of the preparatory exam for judges and prosecutors; (c) special training courses for the promotion of judges and prosecutors; (d) basic training courses for lay judges; and (e) training courses for other professionals in the area of the judiciary as identified by the KJI. For more, see Art. 2.
- 128.
The Code of Ethics and Professional Conduct of Judges was adopted on 25 April 2006 and is available at the official site of the Kosovo Judicial Council: http://www.kgjk-ks.org/. Accessed: 27 May 2013. See Section 3 para. 3 of the Code.
- 129.
After the accession of the Czech Republic to the European Union (EU), the Supreme Administrative Court in the Czech Republic established its Research and Documentation Unit composed of young legal researchers to assist judges on issues related to EU law, international law and comparative law. See http://www.nssoud.cz/The-Activities-of-the-Service/art/499?menu=191. Accessed 12 May 2013.
- 130.
For a categorisation of constitutions that permit the incorporation of international law, see Cassese (1985), p. 394.
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Istrefi, K., Morina, V. (2015). Judicial Application of International Law in Kosovo. In: Rodin, S., Perišin, T. (eds) Judicial Application of International Law in Southeast Europe. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-46384-0_9
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