Pristina, 10 January 2019 – Kosovo Law Institute reacts to the decisions of both institutions within the justice system, namely the decision of the Kosovo Judicial Council for limiting the access of lawyers in courts and the decision of the Kosovo Bar Association with the boycott of court hearings, which are producing major damages at the expense of the justice system and especially to the detriment of the rights and freedoms of citizens that are subject of court proceedings.
KLI as the only organization that systematically monitors the judicial and prosecutorial system, finds that these decisions are producing major damages, which are directly affecting the violation of citizens’ rights. Based on the systematic monitoring data of KLI, it results that only on January 9th, 2019, have been postponed 161 court hearings in criminal cases. In all these cases, most are undergoing the parties in the procedure, failing to realize their rights guaranteed by positive legislation. The KLI expresses concern about this situation created because of the approach of the KJC and the KBA, which have affected that a large number of urgent nature cases such as detention on remand, fail on 9 January 2019. With this problem are still facing judges and prosecutors today on January 10th, 2019 due to the urgent nature of these cases, which can not be proceeded without the representation of lawyers.
KLI has analyzed the respective decisions of these two institutions and the consequences created as a result of this situation. The KLI estimates that the KJC has acted incorrectly and baseless when it has issued a decision / recommendation to regulate the issue of lawyers’ access to the courts. The decision of the KJC is furthermore, selective, unfounded and without proper reasoning, which has produced consequences, causing damages to the parties, stalling court proceedings.
The KLI reminds the KJC that based on the practice of the European Court of Human Rights, which practice according to the Constitution and applicable law in Kosovo is obligatory to be prosecuted and implemented by Kosovo courts, the equality of the parties between prosecution and defense during criminal proceedings is a fundamental aspect of a fair, independent and impartial judicial process. Unfortunately, the decision of the KJC, limiting the right of access only to lawyers in court premises at the country level, has seriously violated this principle, placing them in an unequal position with state prosecutors and other parties in court proceeding.
The Kosovo Constitution sets that the KJC ensures the independence and impartiality of the judicial system. The KJC is a fully independent institution in the exercise of its functions, which is competent in the management and administration of courts, which should ensure that courts in Kosovo are independent, professional and impartial and fully reflect the multiethnic nature of Republic of Kosovo and to follow the principles of gender equality. In this regard, KLI recognizes and promotes the idea that the KJC, within the applicable law, to regulate the administration and management of the judicial system, including the introduction of rules and discipline which aim to increase the efficiency, effectiveness, integrity and trust of citizens in the judicial system of Kosovo.
However, the KJC but also the Presidents of Courts have an obligation that within the exercise of their powers and responsibilities, to take decisions based on law, respecting the procedures and the rights of the parties in court proceedings. Unfortunately, the KJC has based its decision on an order of the Basic Court in Prizren, dated on 8 August 2018, which has no legal basis on which it relied, and moreover the same is not justified.
The Judicial Council and Advocacy as a profession, which is regulated through the Kosovo Bar Association are constitutional categories that for the mission have promoting and increasing the rule of law in Kosovo, with particular emphasis on the protection of human rights and fundamental freedoms. Unfortunately, these two institutions have failed that through communication and coordination to overcome such situations that in practice are hampering the work of the courts, which are forced in the absence of defense representation by lawyers to postpone judicial proceedings, which in the end produce major consequences to the detriment of citizens who are parties in these proceedings in the courts.
KLI also expresses its concern regarding the way that how the Kosovo Bar Association has reacted and managed this situation as a result of KJC decisions. KBA obviously has within its competences and responsibilities the promotion of a fuller and equal access of legal representation for all persons regardless of economic and social conditions. KBA has a mission to set high standards of professionalism, competence, trust and ethical behavior for lawyers in Kosovo. Moreover, the Bar considers permanent goals engagements to maintain the independence of the legal profession and judicial power as the foundations of free and democratic society.
In this regard, also the KBA’s decision which unilaterally and to boycott in a general and unlimited manner all court hearings, including detention on remand cases, as well as boycotting the representation of cases in the Police and Prosecution’s Office, contradicts with the values and the principles promoted by this institution. Consequently, through this decision, the fundamental rights and freedoms of citizens are violated, cases of which can not be proceeded without representation of defense by lawyers.
At the same time, both the KJC and the KBA, have ignored the obligations deriving from the applicable law in Kosovo, and particularly in criminal justice. These two institutions, through their decisions and actions, have violated the principles and standards set forth in the Criminal Procedure Code.
In this regard, the KLI invites the KJC and the KBA to take urgent actions to overcome this situation in order to proceed unhampered the performance of the work in proceedings of the court hearings, all in order to provide services from the justice system to citizens.
To avoid this situation and to provide a solution to this problem, which is creating great consequences for the justice system, especially for citizens who are subject in court proceedings, KLI offers recommendations for the KJC and the KBA, which should be urgently treated by these institutions to avoid violations of citizens’ rights in court proceedings.
Recommendations for the KJC:
The decision regarding the rule and discipline in the Kosovo courts should be done through a sub-legal act, respectively approved regulation in the KJC. The regulation should be based on the law, respecting and promoting standards that increase public confidence and integrity in the judicial system of Kosovo, but at the same time defend and treat equally all parties in court proceedings.
Communication between judges with prosecutors and lawyers should be official communication, based on applicable legislation and good practices that promote access to justice, and excluding opportunities of communication ex parte between judges with prosecutors or judges with defense counsel or other parties.
KJC through secondary legislation to determine access rules in the courts, including entries and exits, identification and registration of all parties and persons that seek court services, including the control and monitoring of the implementation in practice of this legal regulation.
KJC to create the opportunity for lawyers to exercise their profession freely and independently in court facilities, including the inventory of offices of lawyers designated and allowed by the KJC, in the Palace of Justice and the provision of offices in all courts of Kosovo.
Recommendations for KBA:
The KBA should urgently withdraw the decision to prohibit the representation of lawyers in all cases, by allowing representation in cases of urgent nature as required by law and in communication and coordination with the KJC to find a solution to enable the conduct of court proceedings in accordance with applicable law.