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A Judiciary in Limbo

01 February 2010   In most democratic states in the world, there is a clear division between executive, legislative and judicial powers.

The independent functioning of these powers represents a solid basis for a democratic state, rule of law and a state that promotes and protects human rights, freedom of expression, property rights and more.

There is such a division in Kosovo too, but only on paper. 

The interference of politics in Kosovo’s judicial system, absence of laws to reform and restructure the courts, lack of a committee to deal with the jurisprudence examinations and the existence of multiple laws for the same purpose have already caused damage. 

And don’t you find it absurd that the reforms to the judiciary have included vetting candidates, but that there is no new blood being vetted, just the same old judges and prosecutors? 

With an average age of around 50 years, many of these servants of justice participated in Serbian-run courts during the jackboot years of 1989 to 1999, so it comes as no surprise that citizens are distrustful of the judiciary. 

Who is guilty for these problems? If the citizens are asked they would probably respond:

“The Government itself!” I agree with them. Here’s the reason: The draft laws for the reform of the judicial system are gathering dust at the government building of the long-awaited Republic of Kosovo. 

Let me give you some examples of the legislation that is in limbo: the draft law on courts, draft law on the organisation of the judicial council, draft law on public prosecutions, draft law on the organisation of the prosecution councils and more.

These are some of the laws which are supposed to bring in a new, proper and better functioning judiciary in Kosovo. 

The reasons for not being processed and adopted in parliament are manifold, but the real reasons in my opinion is as follows: apparently there was no coordination within the

Government on the content of the legislation as these bills have remained in the office of

Prime Minister since last March, and secondly I believe that interventions by the international community and theprocess of institutional organisation – such as decentralization – have also had a direct impact on the timetables. 

At the end of the day, whatever the reasons, for us, as Kosovo citizens, they don’t really matter.

What matters is the fact that ten years after the war the citizens have their mouths full of rule-of-law words, but in practice no one is pushing ahead with the adoption of these basic laws that would improve substantially the “rule of law”.

For sure, such a situation is suiting someone, but certainly it is not suiting the citizens who have been waiting for a decade now to solve their issues in the courts, leading some plaintiffs to take the justice into their own hands. 

The tendency to control the judicial system is evident also with the lack of a parliamentary committee to deal with the jurisprudence examinations. 

Two years have past now with no new lawyer in Kosovo’s judicial system. 

This, again, is the Government’s fault; respectively the Ministry of Justice, which is legally obliged to make proposals for new lawyers to take the bar exam, and the parliamentary committee for judiciary and legislation, which should discuss the legality of the proposal for a commission on jurisprudence examination. 

In a BIRN Report, Bahri Hyseni, head of the parliamentary committee for judiciary and legislation, said that most of the candidates suggested for the parliamentary committee by the ministry do not fulfil the legal requirements.

On the other side, Astrit Kolaj, the spokesperson for the MoJ, blames the delays in forming the jurisprudence committee on the committee for legislation and judiciary, which he says is impeding the process. 

If we take into account the proposed names of the candidates for this commission, it’s very obvious why the commission is not formed yet. The zeal and ego of the coalition parties to control everything by any means, regardless of the price for the citizen, have been the main reason for blocking the process. 

Justice minister Kelmendi proposed Iliriana Islami, Vjosa Osmani and Ruzhdi Berisha as candidates.

The first two cannot be part of the commission as Islami herself is a judge with the Constitutional Court and Osmani is the advisor to President Sejdiu. Berisha on the other hand, according to Bahri Hyseni, does not fulfil the criteria as he lacks ten consistent years of experience working as a judge. 

That the names are people close to LDK is crystal clear, including Ruzhdi Berisha, who publicly declared on the programme ‘Jeta në Kosovë’ that he was a member of the LDK in the past. 

The other axis in the coalition - PDK - has its own candidates such as Nerxhivane Dauti and Arsim Bajrami.  

The inclusion of these people would clearly be very beneficial for the political parties as it would enable them to decide who will be part of the judicial system in the future. 

This push ‘to have my people’ in the judicial system is another indicator that our political parties are hoping to have the Law on their side.  

But why would you want to ensure that you have justice on your side if you are clean? 

With all my naiveté, I understand that the parties in power are for a judicial system in limbo and not an independent one. 

But I am not so naïve as to think that only the Government is to blame here. Part of the blame is also with the new voiceless lawyers. 

I can state this based on my experience of when I wanted to interview young lawyers for BIRN’s justice report, but many turned down requests for their views to be heard. 

Most of the answers I got went like this: “I can’t be open to speak as they may take revenge when I get to the jurisprudence examination.” 

I cannot but ask myself, perhaps my colleagues, the lawyers, who fail to raise their voices against this problem, and all of us, as Kosovo citizens, deserve to be fooled by the Government? 

I cannot but ask myself, are we really the “Young Europeans”, the people from the advertising spot which cost the Government millions of Euros?We are giving an image to the world, an image of good-looking and enthusiastic young people, ready “to build a state”, and on the other hand we feel suppressed and disciplined in front of the authorities who could spoil our careers “in case we dare to speak”. 

The advertising spot and the rhetoric of the rulers that “no one is above the law” are motivating but it is also immoral to waste money to improve the image to the world when the apple is rotten from inside. 

The youth is still considered the future of Kosovo. If we briefly analyse the situation one may learn that we can only become judges and prosecutors when we get to our 30s to 50s. 

If we remain silent, tacitly approving an established governance with the tendency to control everything, then we cannot expect to have an independent judiciary. 

Isa Gacaferi is a researcher and journalist covering the justice system at BIRN Kosovo. He is currently pursuing his masters at the Faculty of Justice at the University of Pristina.