THE PROCESS OF JUDICIALAPPOINTMENTS - Ballinadrejtesianekosove.com/repository/docs/Birn_-_The_procces_of... · THE PROCESS OF JUDICIALAPPOINTMENTS Balkan Investigative Reporting Network

May a2011, Prishtin

THE PROCESS OFJUDICIAL APPOINTMENTS

B a l k a n I n v e s t i g a t i v e R e p o r t i n g N e t w o r k

Rrjeti Ballkanik i Gazetarisë HulumtueseBalkan Investigative Reporting Network

May a2011, Prishtin

THE PROCESS OFJUDICIAL APPOINTMENTS

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Genc Nimoni

Faik Ispahiu, Director of Internews Kosova and Executive Producer of

“Life in Kosovo” and “Justice in Kosovo”

Jeta Xharra, Director of BIRN Kosovo

Isa Bajçinca

grafika matoshi

Copyright © 2011, Balkans Investigative Reporting Network – BIRN

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Balkans Investigative Reporting Network – BIRN (Kosovo)

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Rrjeti Ballkanik i Gazetarisë HulumtueseBalkan Investigative Reporting Network

“ This publication has been produced with the assistance of the European

Commission. The contents of this publication are responsibility of BIRN and can in

no way be considered to reflect the views of the European Commission”

PRISHTINA BALKAN INVESTIGATIVE REPORTING NETWORK

CONTENTS

List of abbreviations

Methodology

Introduction

Selection of judges and prosecutors

Incomplete legal foundation

Conditions/criteria

Preparatory exam and ethics test

Delays in the appointment and reappointment process

Influences in the process

To what extent has the appointment process affected the work of the

judiciary

120 vacant positions of judges and prosecutors

Kjc requests for budget

Conclusion

Recommendations

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MAY 2011THE PROCESS OF APPOINTMENT/REAPPOINTMENT OF JUDGES AND PROSECUTORS

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List of abbreviations:

BIRN – Balkans Investigative Reporting Network

DPO – District Prosecutors Office

KJI – Kosovo Judicial Institute

KJC – Kosovo Judicial Council

IJPC – Independent Judicial and Prosecutorial Commission

KPC – Kosovo Prosecutorial Council

MoJ – Ministry of Justice

MPO – Municipal Prosecutors Office

UNMIK – United Nations Mission in Kosovo

USAID – United States Agency for International Development


METHODOLOGY

This report presents the results of part of BIRN's court monitoring project,

specifically on the process for the appointment and reappointment of judges and

prosecutors. In this report, BIRN used both qualitative and quantitative research

methods to obtain results. The main section focuses on the analysis of the

appointment and reappointment process, using information collected through the

monitoring process.

Over two years, BIRN has followed judicial processes and considered both their

positive and negative aspects. For the purposes of this report, in addition to

monitoring data, BIRN conducted a number of interviews with relevant officials

and referred to local laws and regulations as well as other organisations' reports on

the process of appointing and reappointing judges and prosecutors.

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THE PROCESS OF APPOINTMENT/REAPPOINTMENT OF JUDGES AND PROSECUTORS MAY 2011

UNMIK Administrative Direction No. 2008/2, Article 2.3Life in Kosovo – Impacts in the judiciary, October 2010 – http://www.jetanekosove.com/shikovideo/590/Alb;Betim Musliu – “Trouble emerges in the process of reappointments”, Lajm Newspaper, 29 April 2010The following cases illustrate the trials monitored by BIRN which have recently commenced, whether due tochanges in the trial panel, or because over three months had passed since the previous session, and have, therefore,adversely impacted the efficiency of the judiciary: Prishtina District Court – 27/09/2010, criminal case –“Aggravated Murder, Unauthorized Ownership, Control, Possession or Use of Weapons” P No. 25/09; PrishtinaDistrict Court – 04/10/2010, criminal case – “Attempted Murder and Unauthorized Ownership, Control,Possession or Use of Weapons”, P. No. 516/09; Gjilan District Court, 06/10/2010, criminal case – “AttemptedMurder”, P. No. 194/09, Article 146 in conjunction with article 20 of KCC; Peja District Court, criminal case –“Unauthorized Ownership, Control, Possession or Use of Weapons”, Article 328, Paragraph 2 of KCC, P. No.80/10.

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Introduction

After a series of delays and postponements, the process of appointing and

reappointing judges and prosecutors in Kosovo concluded in October 2010. This

process, at a total cost of €5.8 million, was funded by the European Commission (€5

million) and the United States ($880,000).

The process encompassed three phases of appointments at all levels .

The first phase, covering reappointments and appointments in the Supreme Court

and the State Prosecution and Special Prosecution of Kosovo, concluded on

February 16, 2010, when the President of Kosovo announced the judges and

prosecutors for these institutions.

The second phase, which covered five district courts, the commercial court and five

district prosecutors offices, concluded in June 2010.

The third phase ended on October 22, 2010, and involved the (re)appointment of

judges and prosecutors at the municipal level.

This process, which was prone to political and other influences , was initiated in

absence of basic laws on courts and prosecutors offices. It was delayed a number of

times, and finished beyond the deadline, with the appointment criteria even violated

in one case. Moreover, the process was also incomplete, leaving 120 positions

vacant, thus impacting the operations and efficiency of the judiciary, and further

deteriorating the judiciary's poor situation .

Kosovo Judicial Council (KJC), the Independent Judicial and Prosecutorial

Commission (IJPC) and the Presidency of Kosovo were the institutions responsible

for this process, and leading this important endeavour for the judiciary.


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Constitution of the Republic of Kosovo, Article 150, Paragraph 3Constitution of the Republic of Kosovo, Article 84, Paragraphs. 15, 16, 17 and 18Independent Judicial and Prosecutorial Commission, http://www.ijpc-kos.org/sq/about.asp

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The IJPC (an autonomous body of the KJC) comprises local and international

judges and prosecutors, and is the main body responsible for reviewing applications

from candidates from prospective judges and prosecutors.

Names of the candidates proposed by the Independent IJPC were submitted to the

KJC, which conducted its own review, and ascertained whether candidates met the

set conditions . +

The list of names of suitable candidates was submitted to the Presidency, and the

President of Kosovo, pursuant to the law, decreed their appointment .

This action concluded the process, which is considered one of the most important

for Kosovo's judicial reform.

KJC, acting on behalf of the IJPC—and pursuant to Article 150 of the Constitution

of the Republic of Kosovo, Articles 2.1 and 2.2 of UNMIK Administrative

Direction No. 2008/2, Articles 1.6 and 6 of UNMIK Regulation No. 2006/52,

UNMIK Regulation No. 2008/4,Article 3 of UNMIKAdministrative Direction No.

2008/6, UNMIK Regulation No. 2006/50 and Law No. 03/L-079 —announced the

vacancies for judges and prosecutors at all levels.

Some 898 candidates for jobs as judges and prosecutors took an ethics test and a

professional test as part of their application process. These tests were successfully

passed by only 418 candidates, despite there being 461 positions initially

announced by the KJC.

At the end of the three subsequent phases, 334 candidates were appointed or

reappointed for the total of 461 judge and prosecutor positions announced

(73.45%). Of these, 132 candidates were reappointed (39.52%), while 202

appointments were new candidates (66.40%). There are in total 95 female judges

and prosecutors (28.44%), 15 from minority groups (4.45%), and the average age of

appointees is around 50.

Thus, although the appointment process is now concluded, over 120 positions in

Selection of judges and prosecutors

THE PROCESS OF APPOINTMENT/REAPPOINTMENT OF JUDGES AND PROSECUTORS

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MAY 2011

After the conclusion of the appointment process, Prishtina DPO had only five prosecutors; Peja MPO had only 4prosecutors, as opposed to the five it had previously; MC in Klina had only 1 judge; MC in Vushtrri only 1 judge,etc.Interview with Enver Peci, Chairman of the Kosovo Judicial Council, interviewed on 08.10.2010.Constitution of the Republic of Kosovo, Article 106; UNMIK Administrative Order No. 2008/02, UNMIKRegulation No. 2005/52;Interview with Fejzulla Hasani, President of the Supreme Court of Kosovo, held on 15.11.2010; Interview withIsmet Kabashi, Kosovo State Prosecutor, held on 25.10.2010

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courts and prosecutors offices remain vacant . According to Enver Peci, Chairman

of the KJC, failure to pass the ethics test—a fundamental prerequisite of the

process—was the main reason for these vacancies.

Another reason may be that salaries are low and potentially not sufficient to

motivate many potential candidates for judicial and prosecutorial positions.

Further, the unfavourable working conditions and lack of occupational security

represent some other key reasons why a large portion of the legal community

hesitated to apply. Peci also states that there are other reasons, such as a lack of

willingness among potential candidates to apply because of the ethics exam and the

large number of pending cases, which is perceived as a potential burden .

The process had commenced in the absence of a complete legal infrastructure, as

there was no law on courts, no law on the Judicial Council, no law on prosecutors'

offices, and no law on the Prosecutorial Council. The lack of these basic laws, which

would clearly and in detail depict the legal regulation of the judiciary, influenced the

appointment process and its consequences will be seen in the future operations of

the judiciary.

The commencement of such a process in absence of basic legal foundations, or on

the basis of a deficient legal foundation, is the greatest drawback that followed the

process throughout. In the event, Articles 150 and 104 of the Constitution of the

Republic of Kosovo, UNMIK Administrative Direction No. 2008/02, and UNMIK

Regulation No. 2005/52 represented the main basic acts determining the regulation

and basic criteria for the process of appointments and reappointments .

The heads of the two highest judicial institutions in Kosovo, the president of the

Supreme Court and the Chief State Prosecutor, considered that basic laws should

have been a necessary prerequisite for the commencement of a process of such

significance .

Incomplete legal foundation


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Interview with Fejzulla Hasani, President of the Supreme Court of Kosovo, held on 15.11.2010Interview with Prof. Dr. Ismet Salihu, Professor of Criminal Law in UP, held on 20.10.2010; interview with HamdiIbrahimi, Prishtina District Court judge, held on 02.11.2010; interview with Musa Dragusha, president of theKosovo Chamber of Advocates, held on 04.11.2010; interview with Lavdim Krasniqi, Director of Kosovo JudicialInstitute, held on 01.11.2010

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Indeed, Supreme Court President Fejzulla Hasani claimed that the process had a

“sinister inception”, because the process should have started with the structuring

and organisation of basic laws and only then would the need for appointments at all

levels be assessed .

The Director of the Kosovo Judicial Institute (KJI), the president of the Kosovo

Chamber ofAdvocates and a number of legal experts told BIRN that the process was

not adequately conceived or prepared. This was because the legal infrastructure was

inadequate to correctly determine the details of the process .

In order to apply as a candidate, a number of basic conditions and criteria had to be

met, as stipulated by UNMIK Regulation No. 2005/52 and UNMIK Administrative

Direction No. 2008/2:

Conditions/Criteria

-The candidate must be a permanent resident of Kosovo;

-The candidate must have high moral integrity;

-The candidate must be able to fulfil all related tasks and work full-time;

-The candidate must possess a valid diploma from a law faculty, in

accordance with Kosovo law;

-The candidate must have passed the bar exam or must be a current member

of the Kosovo Chamber of Advocates;

-The candidate must have followed and completed the necessary

qualifications, set by law and other applicable regulations; and

-The candidate must have varied work experience, depending on the level of

the targeted court or prosecutors office.


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MAY 2011

IJPC criteria do not exclude experience gained under the system of discriminatory measures implemented by theMilosevic regime (1990-2000). However, it is considered that Albanian judges and prosecutors that worked in thisperiod could not really pass the criteria of moral integrity.Independent Judicial and Prosecutorial Council, http://www.ijpc-kos.org/sq/about.aspList of members of the Kosovo Chamber of Advocates,http://oak-ks.org/images/Listat_sipas_dates/lista19102009.pdfJustice in Kosovo – Reappointment and Appointment of Judges and Prosecutors in Kosovo, November 2010 –http://www.jetanekosove.com/drejtesia/612/Alb

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To become a judge at the Supreme Court of Kosovo, at least 12 years of experience

as a judge or prosecutor were required ; for the district courts and district

prosecutors offices, the requirement was seven years of work in the legal

profession; while positions at a municipal court required three years of working

experience in a legal profession .

The professional work of judges and the level of court in which they had worked

were not among the criteria for appointment. Thus, some candidates could move up

more than one court level, while there were also candidates that had never worked as

judges or prosecutors, but have now been appointed judges or prosecutors at district

courts or district prosecutors offices. Such is the case of Fikrije Fejzullahu, who is

now working as a prosecutor at the Prishtina District Prosecutors Office, despite

having never before worked as a prosecutor. Now she prosecutes criminal deeds that

are punishable with up to 40 years' imprisonment. There is a similar case in Gjilan

District Prosecutors Office, where Arben Kadriu, now a prosecutor, had never

worked before as a prosecutor or judge, but instead had been a lawyer (attorney).

Now, after the conclusion of the appointment process, the district courts of

Prishtina, Peja, Gjilan and Mitrovica also have judges that never worked in such

positions before. Nehat Idrizi in Prishtina and Gëzim Pozhegu in Peja are new to

the judiciary, having previously working in a public utility enterprise and as lawyers

for other companies.

There are other similar cases, such as that of Muhamet Rexha, now a judge at Gjilan

District Court but previously a lawyer (attorney); Beshir Islami and Ali Kutllovci,

both now judges at Mitrovica District Court, previously a lawyer for the Kosovo

Property Agency and a professional associate in Mitrovica District Court,

respectively.

Even the highest judicial level, the Supreme Court of Kosovo, was not immune to

such deficiencies. After the appointment process, there are now judges that have

never even worked in district courts before, but, in line with their new functions and

mandate, they must review and exercise control over district court judgments.


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Justice in Kosovo – Reappointment and Appointment of Judges and Prosecutors in Kosovo, November 2010 –http://www.jetanekosove.com/drejtesia/612/AlbInterview with Hamdi Ibrahimi, Prishtina District Court judge, held on 04.10.2010; interview with Enver Peci,Chairman of the Kosovo Judicial Council, held on 08.10.2010; interview with Fejzulla Hasani, president of theSupreme Court of Kosovo, held on 27.09.2010.IJPC criteria do not exclude the experience gained in the system of discriminatory measures implemented by theMilosevic regime (1990-2000). However, it is considered that Albanian judges and prosecutors that worked in thisperiod could not really pass the criteria of moral integrity.Justice in Kosovo, “How was the appointment process carried out?”, November 2010http://www.jetanekosove.com/drejtesia/611/Alb

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Supreme Court President Fejzulla Hasani stated during a televised debate on the

appointment process held in the show Justice in Kosovo that this process showed

no respect whatsoever to the level of candidates' court experience. Concerns were

also expressed by the judges of the Prishtina District Court . These judges stated

that the criteria and conditions set provided judges and lawyers with the possibility

to judge at the district level without ever working as judges before, while providing

others with the possibility to be Supreme Court judges without having passed

through the district level. They dispute the professional capability of a judge that has

never adjudicated at such a level to serve in the highest court in the country, which

covers severe crimes punishable with imprisonment of up to 40 years, stating that it

will be difficult for such judges to resolve cases on the basis of the law and in a just

manner. To become a judge of the Supreme Court the requirement was preliminary

work experience as a judge – for 12 years .

This system has had the perverse result of allowing candidates who had only

worked for seven years as a minor offences court judge, a school secretary, or a

lawyer in a construction enterprise to be appointed as district judges, without ever

being employed at the municipal level.

The third phase of appointments and reappointments in municipal courts and

prosecutors offices saw Acting President Jakup Krasniqi appoint 23 new

individuals as judges and prosecutors, before they had even completed their judicial

education at the KJI. The criteria for judges and prosecutors announced by KJC

clearly state that suitable candidates for judges and prosecutors should have

attended and completed all qualifications determined by law and other applicable

regulations. In this case, judges and prosecutors were decreed even before the

candidates had finished their training. However, they were deprived of the right to

issue judgements .

The judicial entry test and ethics test provided the other conditions judicial and

Preparatory exam and ethics test


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Articles 2.11, 3.4 and 3.5 of UNMIK Administrative Direction No. 2008/2, Article 6.1 (f) of UNMIK Regulation2005/52Interview with Abdurrahim Islami, Ferizaj Municipal Court judge, held on 22.10.2010Law on the establishment of the Kosovo Judicial Institute No. 02/L-25Law on the establishment of the Kosovo Judicial Institute No. 02/L-25, Article 2.1 item a), “Training of the officeholders and potential office holders, in judiciary (judges and prosecutors)”; Vacancy announcement for judges andprosecutors, phase III.Interview with Enver Peci, Chairman of the Kosovo Judicial Council, held on 09.11.2010; interview with LavdimKrasniqi, Director of Kosovo Judicial Institute, held on 11.11.2010

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prosecutorial candidates had to fulfil . This test examined candidates' professional

skills.

These two tests, especially the ethics test, suffered a number of deficiencies and

were accompanied by great controversy; the tests were even criticised by the

candidates sitting them. Many candidates considered such evaluations

unreasonable, as many of them had already been serving as judges and prosecutors

for many years. To such seasoned judges and prosecutors, this test would not prove

anything regarding their knowledge and adherence to ethical values. This may have

caused them to undervalue the test and feel that taking it would undermine their

professional dignity, which may have led to their poor results.

It is important to note that a number of the judges and prosecutors that failed this test

expressed objections about their organisation and the formulation of questions.

Their remarks related to the timeline granted for the test, which was allegedly too

short, at 90 minutes . One of the many judges that failed this test on the first try

came from Ferizaj Municipal Court, and he told BIRN about his many objections to

the organisation and form of the test . As a consequence of failing these tests, a

considerable number of candidates was eliminated from the appointment process.

The KJI provided legal training and education for candidates. To be allowed to

attend this training, young candidates had to successfully complete a preparatory

test, which was also subject to a number of other conditions . Successful

completion of this test was the prerequisite to attending other legal training sessions

for judges and prosecutors.

Even though the vacancy announcement for judges and prosecutors had stipulated

that candidates should have attended and completed the qualification requirements

set by law and other applicable regulations, there are candidates that were appointed

to different municipal and minor offences courts without having completed such

training . Of 53 candidates attending such training, 23 have commenced their

employment as judges without having completed the training, although they are

deprived of the right to issue judgments.


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Interview with Enver Peci, Chairman of the Kosovo Judicial Council, held on 09.11.2010; interview with LavdimKrasniqi, Director of Kosovo Judicial Institute, held on 11.11.2010Interview with Prof. Dr. Ismet Salihu, Professor of Criminal Law at the University of Prishtina, held on20.10.2010

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The KJC chair justifies this state of affairs by claiming that there was a lack of

suitable candidates for judges and prosecutors, so this compromise was decided in

agreement between KJI, IJPC and KJC. On the other hand, KJI Director Lavdim

Krasniqi states that this was to stimulate candidates to join the process .

Legal experts have also criticised the ethics test. For example, Ismet Salihu, a

professor of criminal law at the University of Prishtina, told BIRN that he thinks the

test should not have been applied for serving judges and prosecutors.

It was rather demeaning and not well organised. The short time provided…the

large number of candidates seated in the same room, and inappropriate behaviour by

security staff represented major problems with this test,” he said .

Many critics consider that the IJPC and the KJC should have taken into account the

fact that the testing evaluation method was in contradiction to the learning tradition

that experienced legal professionals in Kosovo are accustomed to, as most of them

had never had to take a test in their lives, because their education system had never

required them to do so.

In this case, awareness raising campaigns on how to complete a test should have

been organised, in order to prepare the candidates for a new methodology for testing

their ability against time pressure etc.

During the monitoring exercise undertaken for this report, many respondents told

BIRN that they think that the poor performance of judges and prosecutors in these

tests does not reflect their lack of knowledge, but was rather a reaction to the shock

they faced as professionals in their fifties, when faced by a totally new evaluation

methodology.

The institutions organising the test have not shown sensitivity to this matter and

failed to address this cultural clash of knowledge measurement tools. Therefore, the

outcome had an effect opposite to the intended legitimisation of the process. Indeed,

this testing method made many professionals in the judiciary feel undermined and

improperly evaluated.

However, on the other side, representatives of the IJPC, now coordinators in the

Office for Judicial and Prosecutorial Evaluation and Verification, and a number of

“


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Interview with Anita Prenaj-Krasniqi, Prishtina Municipal Court judge, held on 08.02.2011; interview with AlbertZogaj, Prishtina Municipal Court judge, held on 08.02.2011; interview with Faton Musliu, Prishtina MunicipalCourt judge, held on 08.02.2011.Interview with Fejzulla Hasani, President of the Supreme Court of Kosovo, held on 27.09.2010Interview with Enver Peci, Chairman of the Kosovo Judicial Council, interviewed on 09.11.2010

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young judges claim that the ethics test was necessary for serving judges and

prosecutors, as it made them aware that they should not consider that they can hold

their positions forever.

Some of those interviewed felt that, until the ethics test, such judges and prosecutors

had considered their positions to be untouchable, which is an unhealthy state of

affairs for a professional judiciary. Regardless, they emphasised that this test was

aimed to raise the level of professionalism among an entire class of judges and

prosecutors, and was not meant to be used primarily as a candidate elimination tool,

despite it actually eliminating quite a large number .

Unlike the ethics test, the judicial entry test was not obligatory for all. The president

of the Supreme Court said that the professional experience criterion had relieved

candidates from this test. Those that had served as judges for three years, as

attorneys for five years, or as other legal professionals for seven years were not

required to take the entry test .

Delays affected all phases of the appointment process. Although the UNMIK

Regulation on the Justice Framework was agreed in 2006, and despite the

persistence of the Ministry of Justice, the process did not officially begin until

February 25, 2008, when a Memorandum of Understanding was signed by

representatives of the European Commission, the United States, and UNMIK. The

first phase, planned to be completed in 2009, suffered the most delays.

The names of candidates for this phase stayed in President Famtir Sejdiu's office for

at least three months, resulting in a three month delay. The second and third phases,

delayed by the first one, also had prolonged processes: June 29 and October 22,

2010 were the respective dates of completion .

The fact that the appointment process was stretched over 30 months—rather than

between six and twelve—will have many consequences, according to legal experts.

In addition to delays themselves, they include inefficiency in work, the inability for

Delays in the appointment and reappointment process


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Interview with Prof. Dr. Ismet Salihu, Professor of Criminal Law at the University of Prishtina, held on20.10.2010; interview with Hamdi Ibrahimi, Prishtina District Court judge, held on 02.11.2010; KLI Document“FORUM 2015”.Betim Musliu – “Troubles emerge in the reappointment process”, Lajm daily newspaper, 29 April 2010Interview with Musa Dragusha, President of the Kosovo Chamber of Advocates, held on 19.10.2010Life in Kosovo – Influences on the judicial system, October 2010 –http://www.jetanekosove.com/shikovideo/590/AlbAdministrative Direction UNMIK No. 2008/2, Article 2.19

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long-term planning due to insecure employment among judges, and a possible

decline in the quality of legal officials .

The appointment process also suffered deficiencies of a different nature. There were

numerous cases of powerful people trying to use their influence to obstruct the

process. For example, according to the criminal judge of Prishtina District Court,

Hamdi Ibrahimi, the former president of the court, Anton Nokaj, had attempted to

exert influence in the KJC so that Ibrahimi was not reappointed .

A further problem with the process was that some candidates were removed from

the lists at the last minute without any reason given, despite the fact that they had

already been officially submitted to the Presidency.

Such was the case with a candidate proposed by the KJC for judge at Prishtina

District Court, whose name was missing after the list was sent back from the

Presidency to be completed with the names of candidates for other courts.

The candidate in question said that he was removed from the list after a simple vote

by KJC members, without taking into consideration the legal criteria. The candidate

explains this with the fact that his name had been removed only so another candidate

can be included in his place .

The third phase of the appointment process for the municipal level faced criticism

after four candidates were removed by the Office of the President from the final list

of judges and prosecutors for decree . Although the Acting President enjoys—and

has used—the right not to decree certain candidates from the list, his Office never

officially informed the KJC, neither in written form nor verbally, on the reasons for

doing so, in contradiction ofAdministrative Directive 2008/2 .

The most blatant case was that of Driton Muharremi, a candidate for president of the

Municipal Court in Prishtina, who was removed from the list just 18 hours before

Influences in the process


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MAY 2011

Life in Kosovo– Influences on the judicial system, October 2010 –http://www.jetanekosove.com/shikovideo/590/AlbLife in Kosovo – Influences on the judicial system, October 2010 –http://www.jetanekosove.com/shikovideo/590/AlbS. A & I. K- “I didn’t change the list”, Kosova Sot Daily Newspaper, 8 November 2010Life in Kosovo – Influences on the judicial system, October 2010 –http://www.jetanekosove.com/shikovideo/590/Alb, Justice in Kosovo – Reappointment and Appointment ofJudges and Prosecutors in Kosovo, November 2010 – http://www.jetanekosove.com/drejtesia/612/Alb;Lirije Osmani, Bilgaip Maznikar and Zhivojin Gojko JokanoviqConstitution of the Republic of Kosovo, Article 108, Paragraph 6, item 2European Commission Progress Report on Kosovo 2010http://ec.europa.eu/enlargement/pdf/key_documents/2010/package/ks_rapport_2010_en.pdf

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the decree, despite being the only candidate for that position, after successfully

passing all procedures with good results .

Timothy Baland, President of the IJPC, the main institution for the verification and

review of candidacies, in a televised interview on Life in Kosovo, left open the

possibility of political interference in the process during the period when the lists

went through KJC and the Office of the President .

Acting President Jakup Krasniqi said on Life in Kosovo on November 8, 2010, that

he had not amended the lists and that he had decreed around 97% of the list.

However, he also told daily newspaper Kosova Sot that because of the very short

time available, he had not been able to pay proper attention to those being certified .

However, in the TV show Justice in Kosovo, Kadri Begolli, an eliminated

candidate, said that the there were political influences on the appointment process,

also mentioning the case of Driton Muharremi .

Another issue identified was that the KJC includes three attorneys , while the

Constitution of the Republic of Kosovo envisages that the KJC would also include

one member of the Kosovo Chamber of Advocates. During candidate selection,

these advocates were active in the selection process, leaving room for suspicion of

conflicts of interest, because it was possible that these advocates had cases pending

before some of the candidates for judges and prosecutors.

Finally, the European Commission Progress Report for Kosovo, published on 9

November 2010, stated that the appointment process had been the victim of political

and other interference .

This means that this internationally funded and facilitated process did not progress

properly as soon as tasks were delegated to local officials, with various

inappropriate influences and delays noted.


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Provisional Criminal Procedure Code of Kosovo, Article 345 (3) – If the main trial has been adjourned for morethan three months or if it is held before a new presiding judge, the main trial shall recommence from the beginningand all the evidence shall be examined again.Provisional Criminal Procedure Code of Kosovo, Article 345(1) – When the composition of the trial panel haschanged, the adjourned main trial shall start from the beginning.District Court of Prishtina – 27.09.2010, criminal case: "Aggravated Murder, Unauthorised Ownership, Control,Possession or Use of weapons” P. nr 25/09; District Court of Prishtina – 04.10.2010, criminal case: "AttemptedMurder and Unauthorised Ownership, Control, Possession or Use of weapon” P. nr 516/09; District Court ofGjilan – 06.10.2010, criminal case: “Attempted Murder” P. nr 194/09 from Article 146 in conjunction to Article 20of the CCK; District Court of Peja – criminal case: “Unauthorised Ownership, Control, Possession or Use ofweapons”, from Article 328 par. 2 of the CCK, P. no: 80/10Interview with Ismet Salihu, Professor of Criminal Law at the University of Prishtina, held on 20.10.2010

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To what extent has the appointment process affected the workof the judiciary?

In addition to resolving the problem of the insufficient number of judges and

prosecutors in Kosovo, this appointment cycle was intended to go some way

towards clearing the extensive backlogs in courts. However, following the

appointment process, the backlog is increasing every day, while closed cases remain

scarce.

In addition, the appointment process created delays to the review of open cases.

According to the Code of Criminal Procedure of Kosovo, if the main trial has been

adjourned for more than three months, it should recommence from the beginning .

Moreover, the trial also recommences if the trial panel is changed . Such cases,

which are clearly linked with the appointment process, were frequently seen by

BIRN monitoring team .

The non-appointment of prosecutors also had an impact on delayed court sessions.

In addition to the number of prosecutors now being smaller than before the

appointment cycle, BIRN has identified cases when prosecutors went unprepared to

trials, readmitted cases and could not prepare for their cases in a short period,

leading to court delays, which, directly or indirectly, were affected by the

appointment and reappointment process.

Ismet Salihu, a criminal law professor at the University of Prishtina, gave particular

thought to the issue of judges' job security, given that many did not know for certain

if they would remain judges after the appointment process. This has created a

significant uncertainty in the work judges.

Another occurrence considered a direct consequence of the appointment process is

the making of what are perceived as suspicious decisions. The most blatant case was


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MAY 2011

N. Ahmeti “Grand at ground zero”, Lajm Daily Newspaper, 5 May 2010; Betim Musliu & Alban Selimi,“Mysterious Judge under investigation, Lajm Daily Newspaper, 28 April 2010.Interview with Isak Ademi, President of Prishtina District Court, held on 28.09.2010Interview with Aleksandër Lumezi, Chief Prosecutor, District Prosecutors Office, interviewed on 05.10.2010

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the decision in the privatisation dispute over the Hotel Grand, which amounted to

over €5 million. Judge Sylejman Nuredini , after not being reappointed in the

second phase, made a judgment he kept secret from the public for one month.

Despite the fact that the three stages of the appointment cycle have been completed,

the number of judges and prosecutors remains insufficient, particularly when

considering the number of pending cases in courts. Of the vacancies announced,

120 are still unfilled.

The Supreme Court of Kosovo, of a total of 15 vacant positions for judges, now has

ten, including two passive ones (Valdete Daka, Chairman of the Central Election

Commission; and Enver Peci, Chairman of the KJC).

Prishtina District Court is in no better position, with only four judges working in

first instance criminal trials. Of a total of 26 required judges, only 15 have been

appointed.

Looking at the large number of unresolved and pending cases in this court, as well as

the number of residents in its jurisdiction, the number of judges is unacceptably

small. The court's president has echoed this opinion .

The Prishtina District Prosecutors Office is also in a poor situation. Prior to the

appointment cycle there were seven prosecutors; now there are only five, including

the chief prosecutor, despite this Office covering around 80% of the cases of all

district prosecutions in Kosovo.

The Prishtina District's chief prosecutor stated that, when prosecutors took over

their new responsibilities, the number of inherited cases in his office was very large:

1,446 unresolved criminal cases were inherited, including known persons; 188

were cases involving minors; 740 referred to various criminal cases; and a further

1,969 unresolved criminal charges related to unknown persons. There were also a

large number of appeals from municipal levels .

120 vacant positions


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Interview with Enver Peci, Chairman of the Kosovo Judicial Council, interviewed on 08.10.2010Interview with Ismet Kabashi, Chief State Prosecutor, interviewed on 12.11.2010Jeta në Kosovë-Court Monitoring Report, May 2010 – http://www.jetanekosove.com/lexo/611/Alb;Interview with Fejzulla Hasani, President of Supreme Court of Kosovo, interviewe

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Taking into consideration the large number of cases, and the fact that this office

receives new cases every day, it takes considerable effort to ensure all cases are

reviewed by six prosecutors, including the Chief Prosecutor.

According to the Chairman of the KJC, the President of Prishtina District Court, and

the Chief Prosecutor of the District Prosecutors Office, reasons for not filling all

open positions include: candidates' failure to apply for the ethics test, candidates'

poor performance in the ethics test, candidates' unwillingness to apply for positions

due to concerns over difficult working conditions and poor salaries, and elimination

by the Commission because of candidates' integrity or record .

Chief Prosecutor Kabashi claimed that the reappointment criteria did not consider

the public interest or the distribution of pending cases.

A total of 77 prosecutors were appointed (excluding ten at the Special Prosecutors

Office), while, according to the number of pending cases, there should be 136 .

Repeated failure to organise the Bar exam for over two years was another reason

quoted for the lack of new candidates .

Research suggests that other countries in the region are in a much better position vis-

à-vis the number of judges. In Kosovo, there are fewer than 14 judges per 100,000

inhabitants, while other countries in the region have many more; for example,

Montenegro has 51, Croatia 41, Slovenia 39, Serbia 28, Hungary 27, Macedonia 26,

Czech Republic 27, Slovakia 22, Bosnia 22, andAustria 22.

Kosovo's small number of judges faces a large backlog of pending cases; the

Municipal Court of Prishtina alone has 20,000 cases. According to an estimate, if

this Court had 30 judges, it would still only be possible to resolve 9,000 cases per

year.

Bosnia and Herzegovina, which had nearly one million pending cases after the war,

introduced a provision in the Law on Courts to appoint provisional judges that

would assist in resolving cases. Kosovo's Supreme Court president, Fejzulla

Hasani, explained that although such a system was successful in Bosnia, it is

difficult to change the current situation in Kosovo's judiciary .


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In March 2011, Kosovo Judicial and Prosecutorial Council published a list of 120

vacancies at courts and prosecutors offices. The criteria used for nearly 480 new

candidates for judges and prosecutors were not changed from those used for the

three previous phases. On the contrary, the candidates for judges and prosecutors

were checked against even lighter criteria.

Thus, it is evident that KJC and the Kosovo Prosecutorial Council (KPC) continue

not to demand previous experience in lower instance courts and prosecutors offices

as a prerequisite for appointments in courts and offices of higher levels (i.e. district

and supreme levels).

The KJC has benefited from approximately 1% of the Kosovo Consolidated

Budget, or €14,242,101. However, the KJC's budget request for 2010 was

€15,901,140, a figure over €1.5 million larger.

The KJC's requested 2010 budget included judges' salaries, additional

administrative staff, along with various goods and services, utilities, capital

expenditures, subsidies and transfers.

The government denied requests for some 466 new positions, including 150

additional court administrative staff; 76 court interns, whose positions were cut in

2005 in order to allow for 237 additional positions; and 3 additional positions for the

JudicialAudit Unit.

The approval of these requests would have helped to ease the heavy duties of new

judges and court staff, as well as assisting young lawyers to build their professional

capacities in their efforts as interns. Such positions would have created possibilities

for on-the-job training of new generations of judicial staff, an essential issue for the

revitalisation of Kosovo's legal system, which was harshly criticised for being

closed to young people who wish to join the judiciary, but cannot gain practical

experience.

Although discussed from 2004, the appointment and reappointment process

officially started on 25 February 2008 when a Memorandum of Understanding on

KJC requests for budget

Conclusion


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the selection and verification of judges and prosecutors in Kosovo was signed by

representatives of the European Commission, the United States, and UNMIK.

This process aimed to clean up, protect, and professionalise the judicial system,

which had been criticised in reports by international and domestic organisations for

its high level of corruption, lack of professionalism and considerable backlog of

cases.

Although funded by the US government and the European Commission to the tune

of €5.8 million, the appointment process, organised and monitored by Kosovo

citizens and international representatives, suffered a number of problems.

The length of the cycle, failures to fill all vacant positions, violations of selection

criteria, political and other unfair influences, along with other problems have meant

that the judiciary continues to face similar difficulties to those it faced before.

Despite expectations that the process would bring in qualified people who would

help to draw the judiciary out of its poor situation, the manner of the process—and

its results—has raised doubts that it will in fact alleviate the judiciary's extensive

backlog and other problems.


Assessment:

Achievements: Failures:

- The appointment process wascompleted

- 480 vacancies announced- 60.48 % new appointees

- Only 334 positions filled- 120 vacant positions- Only 39.52% reappointed- Delays in the process- Influence in the operationalefficiency of the process

- Poor legal basis- Unprofessional criteria

MAY 2011

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RECOMMENDATIONS

Recommendations for the Kosovo Judicial Council (KJC)

Recommendations for the KosovoAssembly

-The KJC should have a more active approach in the drafting of judicial legislation,

by taking part in the proceedings of the Committee for Legislation and Judiciary,

and by ensuring an acceleration of procedures;

-The KJC should replace UNMIK Regulations with domestic legislation;

-The KJC should promptly fill all vacant positions in courts and prosecutors offices,

and publish vacancy announcements;

-The KJC should not delay the process of filling vacant positions;

-The KJC should implement the Strategic Plan for the Kosovo Judiciary 2007-2011,

especially the item on the appointment of provisional judges, as part of the

programme to reduce the courts' backlogs;

-The KJC should respect the criteria for legal education in the appointment of

judges and prosecutors;

-KJC should impose a criterion requiring previous experience in lower judicial

bodies as a condition for all vacancies for judges and prosecutors;

-The KJC should amend the criteria on legal working experience for candidates

applying to work in municipal courts;

-The KJC should amend the criteria on experience for candidates applying to work

in district courts;

-The KJC, before, during, and after the selection of candidates should distance itself

from political and other influences.

-The Kosovo Assembly should adopt the Draft Law Amending and Supplementing

the Criminal Code;

-The Kosovo Assembly should adopt the Draft Law Amending and Supplementing

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the Criminal Procedure Law;

-The KosovoAssembly should adopt the Law on the Protection of Witnesses.

-Kosovo's government, in line with requests from the KJC, should allocate a budget

to continue with the appointment of judges and prosecutors;

-Kosovo's government should guarantee transparency in procedures pertaining to

the initiation of a complete legal framework for courts and prosecutors offices.

-The KJI should continue to provide training in legal education for young judicial

candidates.

Recommendations for Kosovo's government

Recommendations for the Kosovo Judicial Institute (KJI)

MAY 2011

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© BIRNMay 2011, Prishtina

Ministry of Foreign Affairs

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Documents

THE PROCESS OF JUDICIALAPPOINTMENTS - Ballinadrejtesianekosove.com/repository/docs/Birn_-_The_procces_of... · THE PROCESS OF JUDICIALAPPOINTMENTS Balkan Investigative Reporting Network