KLI comments on the Draft Regulation for the Appointment of Chief State Prosecutors and State Prosecutors of Prosecution Offices in the Republic of Kosovo

KLI comments on the Draft Regulation for the Appointment of Chief State Prosecutors and State Prosecutors of Prosecution Offices in the Republic of Kosovo

KLI comments on the Draft Regulation for the Appointment of Chief State Prosecutors and State Prosecutors of Prosecution Offices in the Republic of Kosovo

Comments on the Draft Regulation for the Appointment of Chief State Prosecutors and State Prosecutors of Prosecution Offices in the Republic of Kosovo

  1. Introduction

The Kosovo Law Institute (hereafter: KLI) after the analyses of the Draft Regulation for the Appointment of Chief State Prosecutors and State Prosecutors of Prosecution Offices in the Republic of Kosovo (hereafter: Regulation), submits the following comments regarding the draft regulation.

  1. General Criteria (Article 3)

This article defines that the “interested applicant that has applied for the position of CSP and chief prosecutor of prosecution offices must fulfil the general criteria, as follows:

1: To be prosecutor with a permanent mandate;

2: To not have an indictment raised against them;

3: To not be convicted, with the exception of minor offences

4: To have a positive performance review for the last three years;

5: To not have any disciplinary measures against them within the last five years;

6: To have high professional reputation and moral integrity”.

Firstly, criteria regarding the appointment of Chief Prosecutors must be in full harmony with criteria defined in basic law such as the Law on State Prosecutor and Law on SPRK.  This for the reason that the selection criteria for such positions are defined in the law and not with sub legal acts as is this case. The KPC regulation in this particular case should only set out the internal procedure for selecting candidates who meet the criteria set by law. Moreover, under no circumstances can regulation create duality, nor can it be equated with law. Except in this case, this logic is also expressed in Article 16.3 which sets out the reasons for the objection. This paragraph states that the objection must state the reasons for non-compliance with the law or this regulation. For this reason, the KPC must have a clear legal nature of the secondary legislation, in the specific case of the regulation.

Furthermore, the KPC has set criteria that apply double standards. On the one hand, KPC has defined as a criteria that the candidate should not have an indictment files.  This wording affects that the candidate can apply for the position of state prosecutor of a prosecution office even if against the same investigations are being conducted, respectively through this provision a candidate can apply even if against him/her they have a decision for initiating investigations, that according to the Criminal Procedural Code produces legal consequences.  On the other hand, paragraph 5 defines as a criteria that the candidate whom applies must not have disciplinary measures against them within the last five years.  In terms of the legal consequence, the decision to initiate an investigation is a much more severe measure than the imposition of a light disciplinary measure, with the exception of the imposition of severe disciplinary measures.

The limitation set forth in paragraph five of this article that a candidate for chief prosecutor should not have imposed a disciplinary measure in the last 5 years is contrary to the spirit and intent of the LDLJP.  KPC with this article does not define what disciplinary measures are in question.  Pursuant to article 7 of the Law on Disciplinary Liability of Judges and Prosecutors there are five types of disciplinary sanctions. Among them is non-public written reprimand.  Pursuant to paragraph 4 of this article, the decision for this criminal sanction is not published on the official web site of the KPC.  Whereas, according to this regulation, this measure is an obstacle for a prosecutor to be elected/proposed for prosecutor. For this reason, KPC must avoid the use of such language for this Regulation that excludes prosecutors without a legal basis from applying for the position of chief prosecutor and determine which disciplinary sanctions are obstacles.

KPC cannot build a practice that would potentially enable a candidate for Chief Prosecutor whom has a decision for the initiation of investigation against them and on the other hand, restrict it to another candidate who has disciplinary action such as non-public written reprimand.

Also, this article should regulate the language used and harmonize it with the Law on Disciplinary Liability of Judges and Prosecutors, in such a way as to say “disciplinary sanctions” and not “disciplinary measures”.

  1. Special criteria (Article 4)

While for all prosecutions special criteria have been set for chief prosecutors, this has not been done for the Chief Prosecutor of SPRK, where it stipulates that “for appointment to the position of Chief Prosecutor of SPRK, the candidate must meet the criteria provided by law”.  Initially for this there are two problems.  Firstly, there is a use of double standards vis-à-vis other prosecutions, where for others the specific criteria are strictly defined while in this case it is generally defined.  It should be taken into account that the criteria are set by law for all prosecutions and not only for the SPRK, therefore the same standards should be used. The second is that any potential candidate for this position, the KPC puts them before legal uncertainty. For this reason, the provision should be precise and narrow in meaning.  Therefore, this provision must be reworded as follows: “In order to exercise the function of a prosecutor at the Special Prosecution of Republic of Kosovo, the prosecutor must fulfil the conditions to work as a prosecutor at the Serious Crime Department and to have a positive performance evaluation. The period of exercising the function of prosecutor in the Special Prosecution Office, as determined by the provisions of this Law, shall be counted as the experience of the prosecutor in the Serious Crimes Department of the Basic Prosecution”.

  1. Confirmation of candidate status (Article 7)

At the end of paragraph 5 it should state the following: “…proof that the applicant fulfils the criteria for a candidate” and not “…demonstrate that the applicant fulfils the criteria for the position”.

  1. Exclusion of KPC members (Article 8)

Pursuant to this article, “Any KPC member that has a conflict of interest or sincerely believes that they cannot make a fair decision in the evaluation of whichever candidate must be withdrawn from participating in the process for all candidates”.

We must take into account that this definition of conflict of interest is not found in any of the basic laws. The part “sincerely believes” is completely incomprehensible and irrational. For this reason, assuming that the KPC is aware of the legal nature of secondary legislation, this regulation should include the primary definition contained in the Law on Prevention of Conflict of Interest in Exercising Public Function. Pursuant to article 6 of this law “A conflict of interest arises from a circumstance in which an official has a private interest that affects, may influence, or appears to affect the impartiality and objectivity of his or her official duty”. Therefore, the wording of this provision should be: “Any member of the KPC that has a conflict of interest will be withdrawn from participating in the process for all candidates.”

  1. Conduct during the process (Article 9)

Paragraph 2 of this article stipulates that “no applicant, candidate or KPC member will attempt to influence other KPC members in the selection process. Anyone found in violation of this rule will be subject to disciplinary measures. ”

This paragraph, besides the applicants, candidates and members of the KPC, should include every other actor of the prosecutorial system (chief prosecutors, prosecutors, etc.) in order to prevent them from influencing this process in any form.

Moreover, this article should clearly state that access or attempt to influence KPC members automatically results in exclusion from the candidate’s race.

  1. Evaluation panel and interviewing procedures (Article 11)

At the end of paragraph 2, the following words should be added “names and drawing names should be conducted during a KPC meeting”. This should be done in order to clarify the procedure that should be followed during the KPC meeting, which pursuant to article 14.1 of the Law on KPC are public.  The way that it is currently worded does not give the perception that it is so.  Likewise, this should be done in paragraph 9 of this Article as well as in paragraph 4 of Article 12, which deals with the election of members of the Review Committee.

Furthermore, with regards to this article, paragraph 6 must precisely determine how much time the chair person and members of the evaluation panel have to draft the interview questions.

Article 13

Scoring criteria

Scoring of candidates will be based on the general criteria as follows:

›Concept document and its presentation – up to 30 points;

›Integrity of the candidate – up to 20 points;

›Leadership and managerial skills – up to 30 points;

›Technical knowledge and necessary experience in exercising function – up to 20 points.

The Chief State Prosecutor and the Chief Prosecutors of the respective Prosecutions depend on how this Article is interpreted and applied.

KPC should clearly determine the selection and appointment procedure by including ensuring clear, transparent and objective rules and criteria, guided by competence, integrity and independence.

This article puts a number of candnidates in an unequal situation that were not Chief Prosecutors before or whom did not have managerial positions.  Paragraph 1.3 is crucial to prejude the chief prosecutor of a particular prosecution office in cases where we have a chief prosecutor in relation to a prosecutor.  In this regard, paragraph 1.3 must be explain further, so that candiadtes that apply for this position clearly understand what is meant by leadership and managerial skills for a respective prosecution office.

Furthermore, the questions in the concept paper for Chief State Prosecutor are in contradiction with the powers and responsibilities according to the law a Chief State Prosecuor has in the respective prosecution office.

In this respect, the criteria in this article is in complete disagreement with the way the concept paper was drafted, which has 30 points, and that based on the answers given by the candidates may also influence the scoring on leadership and managerial skills, that is scoring up to 30 points.

The questions below are unclear, confusing and outside the scopr of positions for Chief Prosecutorsfor Appellate, Special or Basic Prosecution offices.


I.                I. Your analysis for the current situtation at State Prosecution;

II.            Comment: Answers to these questions can have an adverse effect and are similar to questions in relation to profesor – student than questions for the clear vision of Chief Prosecutors regarding management and administration of respective prosecution offices. 

1.     How do you evaluate the current situation at StateProsecution?

2.     What do you think are the main priorities of the State Prosecutor’s Office?

3.     What are the main shortcomings of the State Prosecutor?

4.     What are the specific risks, challenges and / or opportunities?

III.   Your vision of improving the operational work of the State Prosecutor?

Comment: These questions are more about the position of Chief State Prosecutor than about other Chief Prosecutors of other prosecutions.

Please list / list your short, medium and long term actions:

1.     What is your vision for the State Prosecutor during your tenure?

2.     What are your main objectives?

3.     What difficulties or risks do you expect in meeting these objectives?

4.     How would you overcome them?

IV.      Vision to manage personnel in the prosecutorial system;

Please list the concrete steps you would take during your tenure?

Comment: These questions were applicable to the position of Chief State Prosecutor in 2014 and 2015, when he held the position of Head of KPC and Chief State Prosecutor. These powers belong to the KPC and not to the Chief State Prosecutors. The career development of prosecutors is governed by the law and policies of the KPC and through the KPC committees and is in no way the competence of the CSP or the Chief Prosecutors.

 The same applies to support staff, where the Civil Service law applies where chief prosecutors have no competence.

Accountability and professionalism is the responsibility of the KPC, and not the CSP or Chief Prosecutors.

1. What is your management style in staff management?

2. How do you plan to build a career development system for staff?

3. How do you plan to improve staff accountability and professionalism?

V.         Steps to be taken to improve the integrity and accountability of the system and public confidence?

Comment: Even in these questions there is a mix of powers and responsibilities between the KPC and the Chief Prosecutors.

Please list / list your short, medium and long term actions:

1. Your experience so far?

2. What steps will you take to increase the credibility of the prosecutorial system by balancing the transparency and confidentiality of the procedure?

3. What do you plan to do to ensure quality work of prosecutors?

4. What do you plan to improve on the overall system of accountability?


  1. Scoring Process (Article 14)

Regarding the calculation of the results process from the KPC Secretariat, paragraph 6 of this article stipulates that this process in done under the supervision of the Chair of the Evaluation Panel, whom is the KPC Chair.  Initially, it should emphasize that this process is not insignificant, therefore with its insignificance we cannot justify the non-participation of other members of the Evaluation Panel in this panel. For this reason, paragraph 6 should specify that in addition to the chair of the evaluation panel, these actions must also be performed under the supervision of other members of the evaluation panel.

After paragraph 6, due to legal certainty and transparency, the obligation of the KPC Secretariat to compile a calculation should also be specified, to compile a reasoned report, which should be part of each candidate’s file.

  1. Notification for candidates (Article 15)

In paragraph 2 of this article, to add sub-paragraph 2.3 that determines that the candidate shall receive a copy of the calculations report.  This for the reason that for any eventual mistakes in calculations, the candidate shall be given the opportunity to object to this calculation under article 16 of this regulation.

  1. Candidates objections to the scoring process (Article 16)

In order to review the objections against the scoring process, this regulation has established the Review Committee in article 12, whereas has defined the competencies of this committee and the objection procedure under article 16 of this regulation.

Yet, with regards to the competencies of this committee and instances in review of objections, this regulation defines a disoriented system that cannot be found anywhere else.  More specifically, in one case the Review Committee is the second and final instance body to decide on the objections raised, while in the other case it is the second instance body, out of the 3 levels specified in this regulation. In the second case, the KPC is the third instance.

According to paragraph 5 of article 16 of the regulation, the “The Review Committee shall examine objections to determine whether they are well grounded. The Review Committee votes on the objection.” Whereas, according to paragraph 6 of this Article, “If the Review Committee finds that the objection is well grounded, it shall submit a reasoned report to the KPC”. Regarding this report, the Regulation states that “the KPC votes on the proposal of the Review Committee” and that “If the KPC approves the findings of the Review Committee under paragraph 6, the KPC shall request the members of the Review Panel to review once again the process of addressing the findings”. So, based on the evaluation of the Review Committee, the final evaluation will be the decision of the KPC.

But this is not the case where the Review Committee finds that the objection is ungrounded. In this case, according to this regulation, the final score is confirmed, and the same assessment by the Review Committee is not reassessed by the KPC. In this regard, paragraph 9 of article 16 of the regulation states that “If the KPC rejects the findings of the Review Committee under paragraph 6, the final score will be confirmed and the KPC goes through the voting process”.

KLI considers that this way of defining the procedure stipulates that in one case the KPC ultimately decides while in the other case the Review Committee presents a disoriented system, which system is not defined in any other case. In this particular case we are dealing with an administrative decision, which allows the initiation of an administrative conflict. In cases when the Review Committee finds that the objection is not grounded, it is a second instance decision, while in cases when this Committee finds that the objection is grounded, it is a third instance decision (after the same should be decided by the KPC), which is not recognized in the administrative procedure. LAW NO. 03 / L-202 on Administrative Conflicts through Article 13 provides that”

  1. Adminitrative conflicts can only be initiated against the administrative act issued in the second instance administrative procedure. 2. An administrative dispute may also be initiated against a first instance administrative act against which no appeal is permitted in the administrative procedure”. Thus, this law does not acknowledge the third instance determined in this regulation. In this regard, the KPC through this sanction in this regulation will only create for consideration in the eventual cases of candidates who will commence administrative conflict before the Basic Court in Prishtina – Department of Administrative Issues.

On the other hand, this determination only increases the non-standardization of the procedure and in an important process such as the election and nomination of Chief Prosecutors creates legal uncertainty regarding the candidates.

On the other hand, paragraph 3 of article 12 of the regulation determines that “Review Committee for the procees assigned for Chief Prosecutors and Chief State Prosecutors is composed by three (3) KPC members”.  In this case, the KPC should also determine which of these 3 members is also the chair of this Committee.

  1. Voting procedure (Article 17)

On 25 April 2019, KPC annulled the vacancy announcement for Chief Prosecutor of SPRK, with the reason that the KPC regulation is not in harmony with the decisions of the Consitutional Court that addresses the selection procedure of selecting the President of he Court of Appeals and President of the Supeme Court of the Republic of Kosovo. For the reason that the current regulation determines that candidates proposed by the Committee must be voted one by one and not from a mutual list.  In order not to change the regulation in the middle of the procedure for Chief Prosecutor of SPRK, KPC annulled the whole process and authorised the Committee for Normative Acts to draft a regulation and of which these comments are addressed to.  Also, in order to await the adoption of this regulation, KPC has postponed the announcement and competition for the selection of the new Chief Prosecutor of Basic Prosecution in Prishtina.

However, the voting procedure sanctioned in this regulation is a procedure that is the least in harmony with the decisions of the Constitutional Court of the Republic of Kosovo.

Accroding to the regulation, KPC has a provisiosn to decide for candidates that in the scoring process were evaluated with maximum points from the evaluation panel.  If this candidate does not get the necessary votes, then the process is repeated.

The second situation, KPC has the opportunity to select between candidates only in cases where two or more candidaates in the scoring process from the evaluation panel had equal points.  Even in this case, if none of the candidates get majority of votes, KPC can decide to re-announce the vacancy announcement.

The Constitutional Court of the Republic of Kosovo, on decision no.KI55/15 defined that the issue of meritocracy is determined by the preliminary evaluation committee and not at the KJC meeting. In the concrete case, according to the Constitutional Court, all candidates had sufficient merit or this position and in between them, with the general voting the KJC would elect one of the candidates.  The Consitutional Court findidngs for this case are obligatory for the KPC also.

“In the selection process as implemented by the KJC, each of the candidates for appointment as President of the Court of Appeal has been evaluated on the basis of merit-based criteria to determine their eligibility for the position. Based on the information provided to the Court, it appears that the candidates were deemed to have sufficient merit for this position, as each of the candidates achieved a score of at least 77 points. The Court notes that the KJC considered that each of the candidates had sufficient merit to qualify for this position, although neither the Applicant nor the KJC showed the exact significance of these results, given that, in principle, all candidates were accepted in the voting process. The voting process was intended to select one candidate from sufficiently qualified candidates. As such, the underlying issue regarding the merits of each candidate to qualify for the position of President of the Court of Appeal is not an issue that had to be addressed by vote, as this had already been addressed in the preliminary evaluation process. . The Court recalls that in the voting process, a fundamental aspect of the principle of “equality” is that every candidate will benefit from “equality of opportunity”. This means that all candidates will have the opportunity to be examined fairly and equitably”, states paragraphs 76-78 of the judgment in question.

If this regulation is adopted as such, then the KPC will be the institution that will simply decide whether or not to notarize the decision of the evaluation panel, which under no circumstances should have a decision-making character.

According to Law No. 06 / L-056 on the Kosovo Prosecutorial Council, Article 7, paragraph 1.4, the KPC decides on the appointment of Chief Prosecutors of Basic Prosecutions, Special Prosecution and Appellate Prosecution, in accordance with the Law on State Prosecution and Law on the Special Prosecution Office of the Republic of Kosovo. In this law, nowhere does it specify that the KPC may transfer duties and responsibilities to another body, in the specific case, to the Evaluation Panel.

By this regulation, the KPC is placed in a subordinate position vis-à-vis the evaluation panel, which assumes absolute primacy during the process. Moreover, from the way the provisions of this regulation are worded, it is not foreseen that the KPC may question the evaluation of the evaluation panel, even more so if the Review Committee does not find that a candidate’s objection is ungrounded.

Also, as long as the Evaluation Panel has 5 members and the Review Committee has 3 members (8 in total), it is possible for some of the KPC members to remain “puppeteers”, where their input and decision making will be equivalent to zero. This is because there are currently 10 members in the KPC, and the Evaluation Panel and Review Committee will be staffed with 8 of them. The remaining 2 members will be left without any role, where they will be in a “take it or leave it” position in the face of the evaluation panel’s proposal.

For all these reasons, KLI recommends the KPC to reconsider this provision, in the sense that it should be harmonized with the Constitutional Court judgments regarding the processes developed by the KJC for the appointment of the President of the Supreme Court and the Court of Appeal. The reason for this was the cancellation of the competition for Chief Prosecutor in the SPRK and the postponement of the process for Chief Prosecutors in Basic Prosecution in Prishtina.

By such a sanction as in this regulation, the KPC will severely violate the legal certainty of all candidates on the one hand and on the other hand will risk that its decisions may be overturned by the Constitutional Court of the Republic of Kosovo. In the second case, the KPC will again face a crisis related to these processes as well as the need for a new regulation, which would destroy the legal certainty of the managing institution itself with the prosecutorial system of the Republic of Kosovo.

  1. Termination of mandate (Article 20) and Procedure for early termination of mandate (Article 21)


Article 4 of basic law to be re-worded as follows:

Article 13 Chief Prosecutor

  1. Chief Prosecutor leads with work and represents the prosecution office that they were appointd to.
  2. Chief Prosecutor of Appellate Prosecution, Chief Prosecutor of Special Prosecution of the Republic of Kosovo and Chief Prosecutors of Basic Prosecutions appointed and dismissed in accordance with the law.

By this regulation, the KPC has established an unlawful and arbitrary system for terminating the mandate of Chief Prosecutors, which substantially undermines the legal certainty of all Chief Prosecutors who have been lawfully elected by the KPC, and at the same time violates the constitutional principles of the Republic of Kosovo.

As to the termination of the mandate, the provisions of this category are of particular importance, and they should be determined only by law, and not by secondary legislation which has no basis or legal basis.

Regarding the termination of the mandate, paragraph 2 of Article 20 defines the cases when a Chief Prosecutor ends his / her mandate prematurely, which in conjunction with Article 21 of this Regulation, means dismissal of the Chief Prosecutors.

Initially, it should be noted that the legal provisions for the termination of the mandate prematurely or for the dismissal of chief prosecutors are not contained in the Law on State Prosecutor or the Law on the KPC.

For this reason, the criteria and procedure for dismissal should be the same as for all prosecutors, as already defined by the Law on Disciplinary Liability of Judges and Prosecutors and the Law on the KPC.

Article 25 of the Law on the Kosovo Prosecutorial Council sets out the reasons and procedure for dismissal of prosecutors. Prosecutors may be dismissed because of:

1.1. has been convicted of a criminal offense, with the exception of criminal offenses committed through negligence; and 1.2. severe disrespect of duties.

Prosecutors have the right to appeal the dismissal decision directly to the Kosovo Supreme Court.

The Law on the KPC implicitly stipulates that the Council, prior to submitting the motion for dismissal of the prosecutor, shall ensure that all relevant proceedings under applicable law have been completed, which means the application of the procedures and criteria set forth in the Law on Disciplinary Liability for the Court and prosecutor.

In the case of this regulation all legal procedures are excluded and constitutional principles are violated. Article 20, paragraph 2 states that “Except according to paragraph 1 of this Article, the mandate of the Chief State Prosecutor and the Chief Prosecutor may be terminated prematurely also for the following reasons:

2.1. When convicted of a criminal offense, with the exception of criminal offenses committed by negligence.

2.2. Failure to fulfill the duties prescribed by law;

2.3. When the performance of the PPEC is negative;

2.4. Failure to comply with general instructions and decisions of the Chief State Prosecutor and KPC; and

2.5. Due to ill management”.

Whereas, Article 21 of the Regulation states that “1. The KPC shall dismiss the Chief Prosecutor concerned if any of the conditions set forth in article 20 of this Regulation are met. 2. The Chief State Prosecutor may propose to the KPC the dismissal of the concerned Chief Prosecutor under the conditions set forth in Article 20. The proposal shall be made in writing in the appropriate form. 3. The Chief Prosecutor for whom the motion for dismissal has been filed may be invited to appear before the KPC. 4. The decision to remove from office is taken by the KPC by a majority vote of the members present. 5. The provisions of this Article shall apply mutatis mutandis also in the case of a proposal for early termination of the mandate of the CSP. In this case the proposal shall be sent to the President”.

Regarding these provisions, KLI considers that by adopting the same, the KPC will establish an arbitrary system, bypassing the legal certainty and procedure regarding the dismissal of prosecutors set out in the KPC Law and the Law on the DLJP. Moreover, such an approach builds a state of uncertainty where chief prosecutors will be under constant pressure from the Chief State Prosecutor and the KPC itself, as they may be dismissed without any procedure. The provisions of articles 20 and 21 of the regulation make it clear that in the present case no procedure is in place. Moreover, apart from the fact that the Chief State Prosecutor may propose to the KPC the dismissal of a Chief Prosecutor, in no other case is it specified who else other than the Chief State Prosecutor may propose to the KPC the dismissal of a Chief Prosecutor. Concerning the competence of the Chief Prosecutor to propose the dismissal of a Chief Prosecutor, it should be noted that this power is nowhere to be found in the applicable laws in the Republic of Kosovo. With regard to the Law on the Disciplinary Liability of Judges and Prosecutors that designates the Chief State Prosecutor as the competent authority, when it stipulates that “the Chief State Prosecutor in respect of allegations of disciplinary breach of Chief Prosecutors”, the KPC must have the proper meaning in mind of the competent authority. In the case of this law, it is about receiving complaints and preliminary examination, whereupon the matter for investigation and adjudication is referred to the KPC. According to this law, unlike this regulation, all this is done through a strict procedure.

Further, this regulation makes no remedy available to the dissatisfied party. By doing so, the KPC itself violates the Constitution of the Republic of Kosovo and the general principles of administrative procedure.

According to Article 32 of the Constitution of the Republic of Kosovo, “Every person has the right to use legal remedies against judicial and administrative decisions that infringe on his / her rights or interests in the manner provided by law”. On the other hand, Article 22 of the Constitution of the Republic of Kosovo stipulates that the human rights and freedoms guaranteed by the following international agreements and instruments are guaranteed by this Constitution, directly applicable in the Republic of Kosovo and have priority, in case of conflict, over provisions and laws and other acts of public institutions:… .2: European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols”. Article 13 of this Convention states that “Everyone whose rights and freedoms as set forth in this Convention have been violated shall have the right to an effective remedy before a national body, regardless of the violation committed by persons acting in the performance of their official function”. Thus, the KPC through this regulation has violated the vital provisions of the Constitution as a primary document for the functioning of the constitutional and legal system of the Republic of Kosovo.

Law no. 05 / L -031 On General Administrative Procedure in Article 2, paragraph 4 provides that “A particular law may lay down specific provisions on various aspects of the administrative procedure. The provisions of the special law shall be in accordance with the general principles set forth in this Law and shall not diminish the level of protection of the rights and legal interests of the parties set forth herein. Whereas, Article 13 of this law defines the principle of the right to legal remedies, which explicitly states that “Except where expressly excluded by law, every person has the right to exercise administrative and judicial remedies in the manner provided by law, against an administrative act or omission of a public body that infringes a right or a legal interest ”. Thus, the KPC regulation in this case also violates the basic laws on which the administrative procedure itself operates.

Referring to the Law on the Disciplinary Liability of Judges and Prosecutors, this law in Article 15 defines the right of the parties to appeal the decision of the KPC, an area that this regulation does not deal with at all.

For all these reasons, KLI finds the provision of Article 20 and in particular the provision of Article 21 of the Regulation very disturbing. For this reason, KLI considers that the KPC should address this issue according to the Law on Disciplinary Liability of Judges and Prosecutors and the Regulation on Disciplinary Procedures of Prosecutors, already adopted by the KPC. The KPC must bear in mind that the very fact that the Law on the Disciplinary Liability of Judges and Prosecutors contains provisions also for Chief Prosecutors, this field is covered by that law and any interference by the KPC in this law with secondary legislation represents exceeding of its powers, cration of legal dualisms and violating the constitutional and legal principles upon which the unique legal system of the Republic of Kosovo operates.

In conclusion, KLI recommends that the KPC completely remove Articles 20 and 21 of this Regulation.