KLI: Judicial Council and Prosecutorial Council are challenged by inefficiency, lack of accountability and contested integrity

KLI: Judicial Council and Prosecutorial Council are challenged by inefficiency, lack of accountability and contested integrity

KLI: Judicial Council and Prosecutorial Council are challenged by inefficiency, lack of accountability and contested integrity

Pristina, 28 May 2019 – Kosovo Law Institute (KLI) supported US State Department – Bureau of International Narcotics and Law Enforcement Affairs (INL)  and NED, on Tuesday held a press conference where it published the report: “Independence, efficiency, accountability and integrity of Councils: Systematic monitoring reports of Judicial Council and Prosecutorial Council – (January-March  2019)”.

Gzim Shala, KLI researcher presented the report findings, which according to KLI prove that the Kosovo Judicial Council (KJC) and Kosovo Prosecutorial Council (KPC) even during the first quarter of 2019 have been faced with a lack of independence, efficiency, accountability and integrity in exercising constitutional and legal responsibility. Shala stated that as a result of systematic monitoring of both councils, KLI considers that these institutions, the competences and responsibilities defined by the Constitution and the law, have not been able to implement them in practice. “It is high time for the KJC and KPC to fulfil their constitutional and legal mandate, so that we can have a more independent, impartial and professional judicial system.”

He emphasized that KLI has also monitored the process for the functioning of the Special Department in the Basic Court of Pristina, which has been overwhelmed by lack of transparency. “The deadline for this department to become operational is June 2, 2019. This department is extremely important because it will adjudicate the largest cases in the country. For this reason, the public is interested to know how this process is being developed and who are the judges that will adjudicate the most serious cases in the justice system of the Republic of Kosovo”.

According to Shala, the first quarter of 2019, like previous periods, has not made any progress in terms of enhancing the efficiency of the mechanisms for controlling the work of judges and prosecutors. On the other hand, during this time period, there have been many cases where certain judges, prosecutors, court presidents and chief prosecutors have violated the principles and the Code of Ethics, but none have been dismissed due to poor performance or due to disciplinary measures.

The laws of the KJC and KPC stipulate that the councils must complete the performance evaluation of all judges and prosecutors every three years. According to KLI findings, it results that KPC has done the planning for performance evaluation as required by law, in order to complete the performance evaluation for 1/3 of prosecutors in 2019. The KJC, on the other hand, has not fulfilled this obligation, because in the face of the 429 judges currently part of the judicial system, it is planned that in 2019 it will perform a performance evaluation for only 42 of them. During 2018, KJC did not assess the performance of 1/3 of judges. However, KLI’s findings show that both councils conduct this process only formally, so that this process does not achieve its purpose.

According to the primary and secondary legislation, the KJC and KPC are obliged to invite the Presidents of Courts, respectively Chief Prosecutors of Prosecutions, to report to the members of the councils every three months. While the KPC has “fulfilled” this legal obligation in a “template” manner and not as required with its own regulation, KJC has not dealt with this issue at all.

The first quarter of 2019 has not been efficient with regard to the adoption of secondary legislation in the KJC and KPC. On the contrary, during this period only one regulation was approved by the KJC, while only two regulations were approved by the KPC. Both Councils have not yet been able to conclude, in 2019, the adoption of secondary legislation on the implementation of the basic laws adopted since 2011, which laws have now been repealed with the adoption of new laws on the judiciary package.

The year 2018 was marked by clashes between the judicial and prosecutorial systems. Between the two systems, there were allegations and counter-allegations concerning the failure of the prosecutorial and judicial systems to fight high-level corruption and organized crime. During the first quarter of this year, only the prosecutorial system threw accusations against the judiciary.

Based on systematic monitoring, KLI found that there is a lack of debate between the members of the KJC and KPC, especially their debate and substantive input during meetings where relevant policies, strategies, and documents for approval are discussed. During the first quarter of 2019, the KPC has a slight quantitative increase in this respect, in that we have no members who have never been heard, as evidenced in the KLI report on KJC and KPC, during 2018, while the KJC has a regression, whereby KLI monitoring identified 3 members who did not say a single word during this quarter.

KLI during KJC monitoring found that the legal obligation to establish new branches of the Basic Court of Pristina in the Municipality of Fushe Kosova and Obiliq has not been fulfilled. As stipulated in the law, their establishment would affect the dismissal of the nation’s busiest court in Pristina, as well as increase access to justice for the citizens of these municipalities. The law that stipulated this legal obligation has now been repealed and the new law has entered into force, which again establishes the establishment of these two branches, as well as some other branches.

Transparency with the public and civil society remains a challenge for the KJC and the KPC, a challenge that no council is willing to overcome. During the first quarter of 2019, in over 30% of requests for access to public documents, KLI received no response from the judicial system. With regard to the prosecutorial system, KLI has not received a response to approximately 20% of the requests. There are also a number of requests for access to public documents, to which both systems have refused to respond. A number of regulations and a large number of decisions adopted by the KJC and KPC during the first quarter of 2019 have not been published on the official websites. In this regard, as of 2018, there is no decision on the official website of the KPC, while only 37.73% of the decisions made by the KPC during the first quarter of 2019 are published on its official website.

KLI has found that Councils continue to have the same approach to decision-making as the adoption of secondary legislation, continuing to violate the law. These Council actions seriously undermine the legality and legitimacy of the justice system in Kosovo.

Furthermore, KLI considers that the positive legislation in Kosovo has provided the two Councils with complete independence in exercising their functions and responsibilities. This independence has been abused by the two Councils, applying the law to the individual interests of certain persons within the system, where for many concrete cases; KLI has consistently raised public concerns.

The lack of will and integrity of both councils to fulfil their constitutional and legal obligations effectively, integrity and professionalism is the worst message these two councils can convey to judges and prosecutors, as well as to the general public. This approach turns working principle into inefficiency, lack of accountability and impunity.

Find attached the report “Independence, efficiency, accountability and integrity of Councils”.