Pristina, 21 October 2020, Kosovo Law Institute (KLI) reacts against the Kosovo Prosecutorial Council (KPC) regarding the nomination of Prosecutor Jetish Maloku for the position of KPC member, a position that was held by Maloku in the past.
KPC on 8 October 2020, announced the elections for new members of the KPC from seven (7) Basic Prosecution Offices, among which includes the Basic Prosecution of Gjilan.
Two (2) prosecutors have submitted their candidacies for KPC members from the Basic Prosecution in Gjilan: Leonora Kadriu and currently the Chief Prosecutor of this Prosecution, Jetish Maloku. Prosecutor Maloku was a member of the KPC from 2011 until the end of 2015.
In this case, the candidacy of Prosecutor Jetish Maloku is in clear contradiction with Law No. 06 / L-056 on the Kosovo Prosecutorial Council, which entered into force on 15 April 2019. Article 12.1. of this law specifies that “Members of the Council remain in office for a term of five (5) years, without the right of re-election.”
Hence, this legal provision has determined that a prosecutor has the right to only one mandate as members of the KPC and the same cannot be re-elected for this position. The purpose of this article is that the composition of the KPC can be continuously reorganised so that the previous members cannot be elected for KPC members again.
Maloku on 15 July 2010 was appointed member of the KJC, an appointment that was based on Law No.03/L-123 on the Temporary Composition of the Kosovo Judicial Council. On 1 January 2011 the Law No.03/L-244 on the KPC entered into force. With the entry into force of this law, Maloku was transferred as a member of the KPC. This transfer was based on article 43.2 of this law, which highlighted that “The prosecutors who, at the time the Council is established as provided in this law, are members of the Kosovo Judicial Council shall be transferred to the Council and remain there until the natural expiration of the their term”.
The fact that Maloku was not appointed as KPC member pursuant to the current law but was appointed according to the previous law does not give the right for him to be re-appointed in the position of KPC members.
This is because the law according to which Maloku was elected as member in the first term has already been repealed and the same cannot be applied. So that law is “dead.” Moreover, the application of that law is not defined even in the transitional provisions of Law No. 06 / L-056 on KPC. Furthermore, Article 12 of Law No. 06 / L-056 on the KPC refers to the composition of the Council and aims to regulate the composition of this institution and not a specific right of a particular member.
For these reasons, Prosecutor Jetish Maloku is not legally allowed to be elected a member of the KPC. Consequently, the nomination of Maloku’s candidacy by the KPC Election Commission (EC) is an illegal action and also this decision represents a non-implementation of the rules that the KPC itself adopted exactly on the day when it announced the elections for KPC member from the ranks of the Basic Prosecutions.
KPC on 8 October 2020 adopted Regulation No.06/2020 on the Election of Kosovo Prosecutorial Council Members from Prosecution, article 8.4. which defines that “Prosecutors that meet the conditions from the respective prosecution where the election is taking place have the right to be nominated for members of the KPC”. Whereas, paragraph 5 and 6 of this regulation stipulates that “If the EC of the KPC finds that a nominated candidates do not meet the legal criteria, it issues a decision within five (5) days from the closing deadline for application for non-acceptance of the candidacy of the nominated candidate. Against the decision of the Election Commission of the EC-KPC by the previous candidate of this article, the dissatisfied candidate may file an appeal to the KPC within three (3) days from the day of receipt of the decision. KPC will review the complaint within five (5) days from the day of receiving the complaint. In case the KPC rejects the complaint, respectively, if it approves it, the KPC publishes the final list of candidates nominated for each prosecutor”.
In this case the EC of the KPC has remained silent to the unlawfulness of the candidacy of Prosecutor Maloku, in which case has breached the KPC regulation and has not reacted to this but has published the final list of nominated candidates for KPC members, among which is also Prosecutor Jetish Maloku.
In this case, KLI considers that such persistent behaviour of the KPC, which behaviour consists of blatant violations of the law and rules adopted by the KPC, lose their meaning to the institution of the KPC, which according to Article 110.1. of the Constitution of the Republic of Kosovo “is a fully independent institution in the performance of its functions, in accordance with the law“. In this case, the KPC must bear in mind that each composition of the council, first of all, must be legal. The ascertainment of the legality of the composition of the council is also reflected in the ascertainment of the legality of all the decisions of the council, which are issued with the votes of the members of the Council. In this way, among other things, public confidence in the prosecutorial system, even within the minimum margins, will be substantially undermined.
For these reasons, KLI recommends to the KPC to return the legality of the election process for members of the KPC from Basic Prosecution in Gjilan, by removing from the list of nominated candidates Prosecutor Jetish Maloku, whose election for KPC member would be unlawful.
On the other hand, a similar situation occurred in June of this year with the candidates for members of the KJC, elected by the Assembly of the Republic of Kosovo. In this vacancy announcement, the candidacy for KJC member was presented by Judge Valdete Daka, former KJC member; however the Legislative Committee avoided its unlawfulness and did not propose the same to be voted in the plenary hearing.
We recall the fact that KPC during 2015 illegally extended the mandate of Prosecutor Maloku for another five (5) months, for which extension, was a conflict of interest, Maloku himself had voted. In this regard, the US Embassy and the European Union Project for the Judicial Council and the Prosecutorial Council, in 2015, through official letters to the Kosovo Prosecutorial Council had highlighted the potential conflict of interest of Mr. Jetish Maloku and former KPC member, Mrs. Sevdije Morina regarding the illegal extension of the mandate beyond the legal term of five years.