Electoral Justice in Kosovo

Legal Framework

Primary• Kosovo Constitution• Law on General

Elections• Law on Local Elections • Criminal Code• Law on the Courts

Secondary• CEC regulations• ECAP Regulations• Courts’ rule of

procedures/court proceedings

• Code of Conduct

Institutions

• Election Complains and Appeals Panel • Supreme Court• Regular Courts (e.g. Court of 1st instance for VL

claims)• Kosovo police and Prosecutors’ Office (e.g.

election crimes)

Election dispute and criminal proceedings

Election disputes + criminal proceedings

Pre election campaign Election campaign Election Day Counting and Results

Criminal proceedings

Cases against election violators

Election disputes and Jurisdiction

• Voter List, campaign finance report: Court of first instance

• Pre election campaign: Legal vacuum • Election campaign: ECAP, Supreme Court• Election Day: ECAP, Supreme Court• Counting- final results: ECAP, Supreme Court• Election crimes KP, Prosecutors’ office,

criminal courts

National Assembly Election 2014

TOTAL complaints filed• Complaints pre election campaign• Complaints during el. campaign• Complaints during election silence • Complaints during E Day • Complaints on preliminary results• Complaints on CRC• Complaints on Final Results

Complaints from voters outside Kosovo

341

7

159

36

47

21

6

65

9,172

Comment: maybe you could add if this classification related to timing of registration or, on the nature of the allegation? For instance, for E-day, are you classifying complaints filed on E-day; or complaints which relates to polling /voting operations. For instance, if there were campaign posters on E-day, is this included in campaign violations or it is in E-day?Comment: Maybe you could do a table of comparison between 2014 AND 2013 Elections

ECAP decisions on complaints in 2014 elections

• Nature of complaints: Most of the complaints have to deal with (1) illegal affixing of posters (67 cases), (2) missing of votes in the candidates’ result sheet at PS (63 cases), (3) illegal announcements of political party’s rallies in trees or around the trees (36 cases), (4) posters on public places (33), (5) in preliminary results are published less votes that he claims he had (12) etc.

• Decisions: 72% dismissal out of 341 complaints (96 valid by ECAP)• 97.7% dismissal out of 9172 complaints for Out of Country voters (206

valid complaints)• Remedies/Sanctions: 1) Fines: ECAP imposed fines to political parties

of a total amount of 86, 700 euro. Only one Political Party has paid 55,900 euros.

• (2) Referral to criminal authority: ECAP has send 32 cases to the prosecutor office for further investigation

• (3) CEC is storing 89 ballot boxes for further investigation by the prosecutor.

Complaints and ECAP decisions in 2013 Local Elections :

• Decisions on complaints:– Total 1064 complaints: 88% dismissed (123 confirmed by ECAP)– Total 16410 Out of Country Vote complaints: 66.7 % dismissed

• Decisions on appeals from CEC decisions: – 45 appeals: 2 were confirmed by ECAP

• Remedies/sanctions: – ECAP referral to prosecutor’s office: 64 cases for further

investigation– CEC sent 143 cases for further investigations by Prosecution– Fines to political subject to a total amount of 377,450.00 euros.

Criminal proceedings related to Kosovo elections

• Cases against election violators

• Regular Courts, Kosovo police, Prosecution

Criminal Cases in 2014 elections

No of registered cases by Prosecution 13 cases involving 23 individuals

E-day incidents acted upon Against 14 persons

Request for detention by Prosecutor 8 persons

- Approval of detention by Courts - Against 5 individuals for a period of 30 days

- House Arrest - Against 2 individuals

- Report to police station in person - Against 1 individual

Regular court proceedings/ongoing investigations

Against 13 individuals

Type of Offenses in 2014 Election

Election offenses committed in 2014 elections related mostly to Articles 215 and 217 of the Criminal Code:– Article 215: Giving or receiving a bribe in relation to voting:

Allegation against 10 persons– Article 217: Obstructing the voting process: Allegation against 7

persons.

Overlapped jurisdiction between election related violations and election crimes.

Criminal cases and Decisions in 2013 Local Elections

• No of cases registered: 54 cases involving 122 persons• Among them, 58 officials (48 commissioners) Decisions:

Prosecutor has issued 19 indictments against 32 persons• Courts has issued two verdicts against 3 persons

MoU between KJC-KPC-CEC-ECAP-KP

• Adoption of MoU in 2013

• Working group of the Coordinator for National Elections Contact person-prosecutor for the Political Subject Delegated prosecutor to CEC 100 stand by prosecutors on the ED 300 persons supporting staff on the ED Prosecutor office and Courts available 24 hours on ED

Role of citizens and NGO-s

• Campaign “Vote and monitor”- over 10.000 SMS sent by citizens

• Total of 36.043 accredited observers• 194 observers from embassies• 197 observers from international organizations • 22 observers from international institutions• 49 from domestic institutions• 3.531 observers from domestic NGO-s • 358 observers representing media

Key Findings from 6 roundtables in the regions

(March-October 2014)• Lack of material evidence e.g. prosecution for criminal proceedings• Individual vs. collective guilty e.g. PS commissioner• Limited number of judges (caseload v. capacity)• Limited number of prosecutors• Keeping records at CEC of staff responsible for sensitive materials• Miscommunication and issue with timely sharing of information between CEC

and prosecutors & courts • Indictments issued by Prosecution without preliminary investigations (e.g. cases

2010))• Complaints related to right to vote due to confusion for valid documents that can

be used to vote• Better training for PS commissioners and undertake a mandatory final test for

commissioner• Train PP for filing, preparation of complaints and appeals (e.g. evidence)• Politicized PC managers

A few Recommendations

ECAP

• Increase the period to file a complaint

• Increase the period for the ECAP to adjudicate

• Increase number of Public hearing and provide better access for public. E.g. ECAP needs more physical space to implement public hearings

• Increase the budget and the staff of ECAP- to undertake investigation of cases when is possible

Court-Prosecutor-ECAP-CEC

• Cooperation after the ED should continue in the same way as in the ED based on MoU

• KPC and KJC should hold a data base of cases related to elections

• KPC should inform back ECAP and CEC for cases that these two have send to Prosecutor Office