Pristina, May 12, 2019 – The Judicial and Prosecutorial system over the last few years has been faced with many difficulties in drafting secondary legislation and its implementation in a right and impartial selection and appointment process for Court Presidents and Chief Prosecutors.
The appointment process of the current Chief State Prosecutor was a subject of critiques from the public, media and international factor. The prosecutorial system is failing to gain public confidence to lead a transparent, impartial process based on the candidate’s merit for key positions in the Kosovo prosecutorial system.
This is based on the fact that the processes of electing, proposing and appointing Chief Prosecutors have built a bad practice in delaying the procedures, starting from the practice of delaying the election of the current Chief State Prosecutor, Aleksandër Lumezi to the last vacancy announcement for the election of a Chief Prosecutor for the Special Prosecution of the Republic of Kosovo, that was annulled on April 25, 2019.
The annulled vacancy announcement on April 25, 2019for Chief Prosecutor of the SPRK was announced two months before, respectively on March 1, 2019. Eight days prior to the vacancy announcement, KPC amended the Regulation for the Appointment of Chief Prosecutors. Four candidates, whom fulfilled the legal criteria, applied for the vacancy announcement. KPC for this vacancy announcement for Chief Prosecutor of the SPRK, established the Committee for the Evaluation of Candidates. The established Committee was composed of three members (Chair of the Committee from the State Prosecution Office and two members from the Appellate Prosecution). None of them were KPC members. Out of the four candidates that were part of the election process, two of them were proposed by the Evaluation Committee to be voted for Chief Prosecutors of SPRK. The two candidates that were not recommended complained to the KPC about the Evaluation Committee decision. KPC partly approved the complaints made by the candidates.
For this vacancy announcement for Chief Prosecutor of the SPRK, KPC attempted to follow the illegal practices created by the KJC to create rules in the middle of the election process, which KLI publicly reacted against. KPC at its meeting held on April 25, 2019, on its agenda, although in the midst of electing the Chief Prosecutor of the SPRK, foresaw the amendment of the Regulation of the Election and Appointment of Chief Prosecutors, which had also been amended two months ago, respectively on February 21, 2019.
The tendency to change the rules along the way, proves that there were agendas to adapt the rules and procedures for certain candidates by the KPC, calling on that the “amendments to the regulations must be done in order to harmonize them with decisions from the Constitutional Court in regards to the process of the Chief State Prosecutor”. However, at the KPC meeting held on April 25, 2019, KPC member, despite the inclusion of this item on the agenda, have emphasized that the change of the regulation between the process constitutes a legal violation. In this situation, KPC on April 25, 2019 decided to return the election process for the Chief Prosecutor of the SPRK to point zero by cancelling the vacancy announcement and authorizing the Committee on Normative Matters to draft a Regulation on the Appointment of Chief Prosecutors as soon as possible, based on legal amendments and decision rendered by the Constitutional Court.
The main challenges for the KPC in recent years are related to the recruitment process and appointment of chief prosecutors, prosecutors, to the adoption and frequent amendment of secondary legislation and its non-implementation in practice. In addition, although the criteria for recruitment and appointment of prosecutors are provided by law, KPC through secondary legislation has often amended the rules and criteria during the appointment process, which proves the lack of KPC’s ability to make clear and transparent policies and their implementation in practice, which still is lacking.
KLI recommends that through the adoption of this new Regulation, KPC must reach these objectives that: the appointment process be led by KPC, avoiding practices that are important duty be delegated to the Evaluation Committee; drafting of the Regulation must be drafted in closed consultation with NGO’s interested and specialized in the rule of law, Chamber of Advocates and academics; the appointment process for Chief Prosecutors should be based on objective, clear, and transparent rules and criteria; the appointment process should be open to public scrutiny and documented fully and properly and should be undertaken according to the published criteria rather than being amended unlawfully during the process; appointment should only be based on merit, promoting diversity and avoiding discrimination; the appointment process should provide for an independent complaints procedure; and appointment procedures should be characterized by a high degree of publicity and transparency for the public.
For more, download the policy analysis “Fight for Chief Prosecutors”
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The content of this publication is the exclusive responsibility of the Kosovo Law Institute – KLI and it does not reflect the views of the International Bureau of Narcotics and Law Enforcement Matters (INL) – the US State Department and NED.