EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
opinion
on human rights
in kosovo :
Possible
establishment
of review
mechanisms
Adopted by the Venice Commission
at its 60th Plenary Session
(Venice, 8-9 October 2004)
on the basis of comments by
Mr Pieter Van DIJK (Member, the Netherlands)
Mr Jan HELGESEN (Member, Norway)
Mr Giorgio
MALINVERNI (Member, Switzerland)
Mr Georg NOLTE (Substitute Member, Germany)
Mr Jean-Claude SCHOLSEM (Member, Belgium)
TABLE OF CONTENTS
I. Introduction. 3
II. Background. 4
III. The Human
Rights Instruments Applicable in Kosovo. 6
IV. The Human
Rights Situation in Kosovo: An Overview of the Main Issues. 7
a. Lack of
Security. 7
b. Lack of
Freedom of Movement 8
c. Insufficient
Protection of Property Rights. 9
d. Lack of
Investigation into Abductions and Serious Crimes. 10
e. Lack of Fairness and Excessive Length of Judicial
Proceedings; Difficult Access to Courts. 11
f. Detentions
without Independent Review.. 11
g. Corruption. 12
h. Human
Trafficking. 12
i. Legal
Certainty, Judicial Review and Right to an Effective Remedy for Human Rights
Violations 12
V. Immunity
of the International Presence. 14
VI. The Human
Rights Situation in Kosovo: Proposals as to Possible Institutional Solutions. . …...……………………………………………………………………………………16
A. International Review
Mechanisms with Respect to Acts of UNMIK and KFOR.. 17
B. Specific Mechanisms. 20
a. The Existing
Situation. 21
b. Establishment
of a Human Rights Court for Kosovo. 22
C. Provisional Review
Mechanisms, to be Realised in the Short Term.. 24
a. Provisional
System of Independent Review of the Compatibility of UNMIK Acts or Omissions
with Human Rights Standards. 25
b. Supervision
of the Compatibility of KFOR Acts or Failures to Act with Human Rights
Standards 26
c. Supervision
of the Compatibility with Human Rights Standards of Acts or Failures to Act by
the Provisional Institutions of Self-Government of Kosovo. 28
VII. Possible
Establishment of Review Mechanisms: The Role of Serbia and Montenegro. 29
VIII. CONCLUSIONS. 30
1. By a letter dated 13 May 2004, Mr Eduard Lintner, Chairperson of the
Committee on Legal Affairs and Human Rights of the Parliamentary Assembly,
requested the Commission to prepare an opinion on “the human rights situation
in Kosovo”.
2. The Committee in particular raised three
issues on which it wished to dispose of the Commission’s opinion:
- What state or other entity is responsible
under international law for the protection of human rights in Kosovo? In
particular, does Serbia and Montenegro’s ratification of the European Convention
on Human Rights without any territorial declaration make it responsible for
human rights protection also in Kosovo?
- Would it be possible to conclude some form
of agreement between the Council of Europe and the international authorities in
Kosovo placing them, along with the Provisional Institutions of Self-Government
which are subsidiary to the international authorities, within the jurisdiction
of the European Court of Human Rights? How would such a development fit with
the Court's procedures and caseload? Would it create a remedy of genuine
practical value? Would it be necessary for such an agreement to be tripartite,
i.e. to include also Serbia and Montenegro as the state of whose sovereign territory
Kosovo is a part?
- Instead of bringing the international and
local, provisional authorities within the jurisdiction of the European Court of
Human Rights, would it be preferable to establish some form of "human
rights chamber", perhaps similar to that set up in Bosnia and Herzegovina?
If so, how might such a body be constituted?
3.
A Working group, composed of Messrs Van Dijk, Helgesen, Malinverni,
Nolte and Scholsem was set up.
4.
Messrs Van Dijk, Helgesen and Malinverni held a preliminary exchange of
views in Strasbourg, on 28 May 2004. Mr Nolte submitted his preliminary
comments in writing (CDL-DI (2004)002).
5.
A preliminary discussion on this matter was held within the
Sub-commission on International Law on 17 June 2004.
6.
Messrs Helgesen, Nolte and Scholsem visited Kosovo on 1-3 September
2004. They met with the President of the Supreme Court of Kosovo, the
Ombudsperson, the UNMIK Deputy SRSG for Police and Justice, the UNMIK Legal
Adviser, the OSCE Director of Human Rights and the rule of law, the KFOR Chief
Legal Adviser, as well as with representatives of the UNMIK Department of
Justice and Office of Returns and Communities, of UNHCR, of OHCHR and of
UNICEF.
7.
The working group held a meeting in Paris on 20 September 2004.
8.
The present opinion was discussed within the Sub-Commission on
International Law on 7 October 2004 and was subsequently adopted by the
Commission at its 60th Plenary Session (Venice, 8-9 October 2004).
9.
Following the conflict in 1999, international civil and security
presences were deployed in Kosovo, under United Nations auspices and with the
agreement of the then Federal Republic of Yugoslavia, pursuant to Security
Council’s Resolution No. 1244(1999).
10.
The United Nations Interim Mission in Kosovo (UNMIK) was thus
established, and empowered, in particular, with promoting the establishment,
pending a final settlement, of substantial autonomy and self-government in
Kosovo; performing basic civilian administrative functions where and as long as
required; organizing and overseeing the development of provisional institutions
for democratic and autonomous self-government pending a political settlement,
including the holding of elections; transferring, as these institutions are
established, its administrative responsibilities while overseeing and
supporting the consolidation of Kosovo’s local provisional institutions and
other peace-building activities; facilitating a political process designed to
determine Kosovo’s future status; maintaining civil law and order, including
establishing local police forces and meanwhile through the deployment of
international police personnel to serve in Kosovo; protecting and promoting
human rights; and assuring the safe and unimpeded return of all refugees and
displaced persons to their homes in Kosovo.
11.
Four “pillars” were initially set up by UNMIK. Currently, the pillars
are:
Pillar II: Civil Administration, under
the direct leadership of the United Nations;
Pillar III: Democratisation and Institution Building, led by the Organization
for Security and Co-operation in Europe (OSCE);
Pillar IV: Reconstruction and Economic
Development, led by the European Union (EU).
12.
The head of UNMIK is the Special Representative of the Secretary-General
for Kosovo. As the most senior international civilian official in Kosovo, he
presides over the work of the pillars
and facilitates the political process designed to determine Kosovo's future
status.
13.
The Kosovo Force (KFOR) is a NATO-led international force responsible
for establishing and maintaining security in Kosovo. It is mandated under
Resolution 1244 to:
a.
establish and maintain a secure environment in Kosovo,
including public safety and order;
b.
monitor, verify and when necessary, enforce compliance
with the agreements that ended the conflict;
c.
provide assistance to the UN Mission in Kosovo (UNMIK),
including core civil functions until they are transferred to UNMIK.
14.
KFOR contingents are grouped into four multinational brigades. KFOR
troops come from 35 NATO and non-NATO countries.
Although brigades are responsible for a specific area of operations, they all
fall “under the unified command and control” (UN SC Resolution 1244, Annex 2,
para. 4) of Commander KFOR from NATO. “Unified command and control” is a
military term of art which only encompasses a limited form of transfer of power
over troops. Troop contributing states have therefore not transferred “full
command” over their troops. When States contribute troops to a NATO-led operation
they usually transfer only the limited powers of “operational control” and/or
“operational command”. These powers give the NATO commander the right to give
orders of an operational nature to the commanders of the respective national
units. The national commanders must implement such orders on the basis of their
own national authority. NATO commanders may not give other kinds of orders
(e.g. those affecting the personal status of a soldier, including taking
disciplinary measures) and NATO commanders, in principle, do not have the right
to give orders to individual soldiers (except in certain special cases, such as
when soldiers are seconded to Headquarters, or when they form part of special
units such as the staff of NATO AWACS reconnaissance planes). In addition,
troop contributing states always retain the power to withdraw their soldiers at
any moment. The underlying reason for such a rather complex arrangement is the
desire of states to preserve as much political responsibility and democratic
control over their troops as is compatible with the requirements of military
efficiency. This enables states to do the utmost for the safety of their
soldiers, to preserve their discipline according to national custom and rules,
to maintain constitutional accountability and, finally, to preserve the
possibility to respond to demands from the national democratic process
concerning the use of their soldiers.
15.
Under Sections 2 and 3 of UNMIK Regulation no. 2000/47 of 18 August 2000, KFOR, KFOR personnel,
UNMIK, and UNMIK personnel “shall be immune from any legal process”.
16.
The Constitutional Framework for Provisional Self-government in Kosovo
(seeCDL(2001)56) was established through UNMIK Resolution 2001/9.
It set up the Provisional Institutions of Self-government, which are: the
Assembly; the President of Kosovo; the Government; the Courts; and Other bodies
and institutions set forth in this Constitutional Framework. Their areas of
competence are set forth in Chapter 5.1 of the Constitutional Framework.
According to UN SC Resolution 1244 (paras. 10 and 11 (c)and (d)) UNMIK has the
responsibility of “organizing and overseeing the development of provisional
self-governing institutions” which means that they act under the authority of
UNMIK.
17. The Provisional Institutions of
Self-Government and their officials must “(a) Exercise their authorities
consistent with the provisions of UNSCR 1244(1999) and the terms set forth in
this Constitutional Framework; (b) Promote and fully respect the rule of law,
human rights and freedoms, democratic principles and reconciliation; and (c)
Promote and respect the principle of the division of powers between the
legislature, the executive and the judiciary”.
18.
The rights of Kosovo communities and their members are listed in Chapter
4 of the Constitutional Framework. The Provisional Institutions of
Self-Government must ensure that all Communities and their members may exercise
these rights, while the Special Representative of the Secretary General, based
on his direct responsibilities under UNSCR 1244(1999) to protect and promote
human rights and to support peace-building activities, retains the authority to
intervene as necessary in the exercise of self-government for the purpose of
protecting the rights of Communities and their members.
19.
The Ombudsperson Institution, established by UNMIK Regulation Number
2000/38, is an independent institution which has the role of addressing
disputes concerning alleged human rights violations or abuse of authority
between the individual/group of individuals/legal entities and the Interim
Civil Administration or any emerging central or local institution in Kosovo. He/she
accepts complaints, initiates investigations and monitors the policies and laws
adopted by the authorities to ensure that they respect human rights standards
and the requirements of good governance.
20.
In his Report of 12 July 1999,which detailed the authority and competences of the UNMIK mission, the
Secretary General of the United Nations interpreted UNMIK’s obligation under
Resolution 1244 to protect and promote human rights as requiring it to be
guided by internationally recognized human rights standards as the basis for
the exercise of its authority.
21. The first UNMIK Regulation
made domestic law applicable only in so far as it was compatible with human
rights standards and required all persons undertaking public duties or holding
public office to observe internationally recognized human rights standards in
the course of their functions. Moreover, it mandated non-discrimination in the
implementation of public duties and official functions.
22.
Under Article 1.3 of the above Regulation, “in exercising their
functions, all persons undertaking public duties or holding public office in
Kosovo shall observe internationally recognized human rights standards, as
reflected in particular in:
- The
Universal Declaration on Human Rights of 10 December 1948;
- The
European Convention for the Protection of Human Rights and Fundamental Freedoms
of 4 November 1950 and theProtocols thereto;
- The
International Covenant on Civil and Political Rights of 16 December 1966 and the Protocols thereto;
- The
International Covenant on Economic, Social and Cultural Rights of 16 December 1966;
- The
Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965;
- The
Convention on Elimination of All Forms of Discrimination Against Women of 17 December 1979;
- The
Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or
Punishment of 17 December 1984;and
- The
International Convention on the Rights of the Child of 20 December 1989.”
23.
Under Chapter III of the Constitutional Framework, the following human
rights instruments must be applied and ensured by the PISG:
- The
Universal Declaration on Human Rights;
- The
European Convention for the Protection of Human Rights and Fundamental Freedoms
and its Protocols;
- The
International Covenant on Civil and Political Rights and the Protocols thereto;
- The
Convention on the Elimination of All Forms of Racial Discrimination;
- The
Convention on the Elimination of All Forms of Discrimination Against Women;
- The
Convention on the Rights of the Child;
- The
European Charter for Regional or Minority Languages; and
- The
Council of Europe's Framework Convention for theProtection of National Minorities.
24.
While a full and detailed analysis of the human rights situation in
Kosovo is outside the scope of this opinion, the Commission views as necessary
to carry out a summary review of the main human rights problems encountered in
the region since the end of the 1999 conflict, before moving on to analyse
possible ways of enhancing the level of protection of the fundamental rights of
the people living in Kosovo.
25.
In carrying out this analysis,
the Commission has relied, inter
alia, on the annual reports of the Ombudsperson institution in Kosovo (in
particular the fourth annual report of 12 July 2004),
the Report of 16 October 2002 by the Council of Europe Commissioner for Human
Rights
on “Kosovo: the Human Rights Situation and the Fate of Persons Displaced from
their Homes”, the reports by the OSCE Mission in Kosovo, the reports by the US
Department of State and the reports by Amnesty International, and on
information provided for by UNMIK, KFOR, OSCE and OHCHR.
26.
The main human rights issues which are currently being experienced in
Kosovo are listed hereafter.
27.
The security of the non-Albanian communities in Kosovo (Serbs, Roma,
Ashkali, Egyptian, Bosniak and
Gorani communities) has been and is seriously and continuously
threatened. Numerous incidents, including fatal ones, have occurred since 1999.
The same situation pertains as concerns Kosovo Albanians in the territories
controlled by Kosovo Serbs (northern part of Kosovo, including Northern Mitrovica).
28.
On 16-18 March 2004, Kosovo witnessed an eruption of ethnic violence
against the non-Albanian communities and UNMIK. The response of the
international community to these riots was inadequate. KFOR, UNMIK Police and
Kosovo Police Service (KPS) proved incapable of providing a co-ordinated
response to the riots and of maintaining public order.
29.
According to the OMIK, as a result of this violence, 19 persons died,
954 were injured and 4100 were displaced; 550 houses and 27 churches and
monasteries were burned (with 182 houses damaged).
The main victims of these
attacks were members of the Serb, Ashkali, Roma and Egyptian communities. UNMIK
has made considerable efforts to bring to justice those responsible for the
violence of March. According to UNMIK, more than 270 people were arrested for
criminal acts related to the riots. The most serious cases relating to murders,
ring-leaders, serious inter-ethnic violence and major arsons (56 cases in
total) are being handled by international prosecutors. On account of their
complexity, progress in these cases has been slow. 17 criminal proceedings
ensuing from these acts are currently pending, with 36 persons involved.
Indictments have been issued in 9 cases, which have culminated in 4 sentences.
As concerns action against possible ring-leaders, four locally influential
individuals, including three Branch Presidents of the War Veterans Associations
of Pec and Istok are under pre-trial investigation on charges of leading and
inciting riots. The larger bulk of the less serious cases (more than 260) were
entrusted in the local judiciary. These cases, which involve theft, arsons,
attacks and other minor offences related to the riots, have been processed more
swiftly. 100 cases have been completed, and 80 people have been convicted.
30.
In July 2004, the Kosovo Security Advisory Group was created as a
confidence-building exercise, whose main purpose is to establish dialogue
between communities on issues related to security and freedom of movement, and
thus to improve security for all communities.
31.
Local Crime Prevention Councils are also in the process of being
established in every municipality; they are already functioning in the
South-west region. They are intended as consultative bodies which meet once a
month bringing together representatives of each community in the municipality,
religious leaders, representatives of the board of education as well as
representatives of KFOR, KPS and OSCE, in order to address security concerns of
all stakeholders at the grass-root level and identify concrete steps which can
enhance community security. This is aimed to help build confidence between
communities and increase the ability of KPS and KFOR to be responsive to their
preoccupations.
32.
Applicable law provides for freedom of movement and no special documents
are required for internal movement.
33.
Nonetheless, on account of inter-ethnic tensions and security concerns, since the conflict in 1999 it has been extremely
difficult for members of non-Albanian communities, in particular the Serbian
and Roma communities, to move freely in Kosovo. In certain areas, Kosovo Serbs
in particular have been confined to their places of residence, relying mostly
on escorted transport for occasional visits to other places in Kosovo populated
by minority ethnicities or to the administrative border with Serbia and Montenegro.
37.
The 1999 conflict forced thousands of people to leave their homes and land.
Many such houses, apartments, and business premises
have been illegally occupied, farmland has been cultivated by unauthorised
people and buildings have been constructed illegally on other people’s land.
38.
In November 1999, UNMIK created the Housing and Property Directorate
(HPD) and the Housing and Property Claims Commission (HPCC), with the task of
regularizing housing and property rights in Kosovo and of resolving disputes
over residential property. Claims raised by persons who were the owners,
possessors or occupancy right holders of residential real property prior to 24
March 1999 and who do not now enjoy possession of the property, and where the
property has not voluntarily been transferred (“informal” property
transactions, loss of possession through illegal occupation of houses of
displaced families after the 1999 conflict), have been placed under the sole jurisdiction of the HPD. Ordinary courts
remain competent over the remainder of the property cases.
39.
By 1 July 2003(deadline for submitting repossession claims), a total of 28,899 claims had
been received (of these, 93,5% are repossession claims), and by 1 July 2004, a decision was issued in
respect of 54% of these claims.
40.
The enforcement of these decisions (which is normally an eviction) is
also entrusted in the HPD. This process has proved to be rather slow, due to
the limited capacities of HPD (insufficient staff to deal with cases, due to
insufficient financial means). The
execution of the decisions of the HPD is often delayed for security reasons.
Indeed, only some 6,200 of the decisions issued by the HPD have been implemented
In addition, once the premises
are vacated, the HPD does not have a mechanism to secure them against
re-squatting. According to OMIK Report “Property Rights in Kosovo 2002-2003”,
50% of the vacated premises were subsequently re-squatted, and 30% thereof were
severely damaged as a result of the eviction.
41.
The decisions by HPD are final and not subject to review by any judicial
or other authority in Kosovo, besides the Ombudsperson, whose office recorded
54 complaints against the HPD (in the 2003-2004 reporting period), most of them
involving the length of proceedings before the HPD, and the slow or ineffective
enforcement of the HPD’s decisions.
42.
The main problem affecting property rights in Kosovo is the illegal
occupation of residential and non-residential property. With proceedings before
the HPD lasting up to four years, and without any effective remedy against the
length of these proceedings and/or decisions on the merits by the HPD, there is
a climate of impunity for property rights violations.
43.
There is an increasing number of property disputes before the competent
courts concerning disputes over the application of property laws. These
proceedings, however, are extremely lengthy. In addition, there is confusion
about what property laws and concepts to apply.
44.
The fate of thousands of Albanians who went missing before and during
the 1999 war
is still unclear. Progress in bringing to justice those responsible for the
abduction of around 1,200 Serbs, Roma and other ethnic minorities members is
extremely slow.
45.
The slow progress in the investigation into most serious murder cases contributes
significantly to the climate of impunity in Kosovo.
46.
At present, Kosovo has 24 municipal courts and five district courts. The
Kosovo Supreme Court is the last instance court, with jurisdiction over the
courts of the PISG in the entire territory of Kosovo.
48.
Municipal courts have witnessed a steady growth in their caseload and
have proved incapable of processing cases within a reasonable time. Enforcement
of the decisions is difficult and not prompt, mainly due to, in civil cases,
the insufficient number of
court bailiffs and the refusal by banks to allow seizures or freezing of bank
accounts. Executions in respect of any former socially-owned property require
the previous approval of the Kosovo Trust Agency, an administrative body. In
criminal cases, non-execution is due to time-bar and insufficient capacity of
prisons.
49.
Several problems are reported as concerns criminal justice, varying from
negligence and incompetence of individual judges to technical incapacity of
supporting services, to suspected links with organised crime circles. Within the UNMIK Department of
Justice, the Judicial Inspection Unit is entrusted with investigations into
alleged misconduct of judges and prosecutors. If misconduct is found, the case
is referred to the Kosovo Judicial and Prosecutorial Council for disciplinary
proceedings. There have been more than 20 disciplinary proceedings completed so
far, with imposed sanctions ranging form reprimand to dismissal. There seem to be some 70 investigations
pending.
51.
KFOR has detained suspects on the basis of military decisions not
subject to any independent review outside the chain of command and outside the
administrative hierarchy.
52.
According to the OMIK’s Report on “The Criminal Justice System in Kosovo
March 2002 – April 2003”, KFOR detained up to a maximum of 200 people in summer
2001, and a cumulative total of 3563 people have been detained so far at the US
KFOR Bondsteel Base.
53.
The number of persons detained by KFOR with approval from UNMIK-P rose
considerably after the riots of 17-18 March 2004. However, no one is currently
being detained by KFOR.
54. The allegations of corruption in different
sectors of public life including the judiciary are widespread and severe.
According to public opinion surveys, Kosovars also feel that corruption is a
major problem.
55.
Kosovo continues to record high numbers of trafficked women for forced
prostitution. Around 180 bars, cafes and motels where trafficked women and
girls were suspected to work are enlisted by UNMIK in its “off-limits” list.
56.
A special unit of the Police (the Trafficking and Prostitution
Investigation Unit – TPIU) was formed within UNMIK CIVPOL to fight forced
prostitution. In the first three years of its counter-trafficking police
operations, assisted by local KPS officers, it rescued 300 trafficked victims
and brought 140 charges against traffickers and other involved criminals.
However, despite the efforts by UNMIK, trafficking for forced prostitution
remains widespread.
59.
There is no Constitutional Courtin Kosovo which could inter alia resolve conflicting decisions by lower
courts. A Special Chamber of the Supreme Court for Constitutional Framework
Matters is provided for in Chapter 9.4.11 of the Constitutional Framework. It
would have competence to determine, inter alia, the “compatibility of
laws adopted by the Assembly with the Constitutional Framework, including the
international legal instruments specified in Chapter 3 on Human Rights, at the
request of the President of Kosovo, any member of the Presidency of the
Assembly, any Assembly Committee, no fewer than five members of the Assembly,
or the Government”. However, such special Chamber has so far not been established.
61. According to the Ombudsperson, “UNMIK and
KFOR have at least nominally recognised that individuals to whom they have
caused injuries, damage to or loss of property should receive compensation,
although neither has recognised the possibility of awarding damages. Both
actors have established internal “claims offices”. However, the nature of the
proceedings of the UNMIK and KFOR bodies differs greatly. UNMIK provides no
opportunity for individuals to be heard or represented by legal counsel in
their proceedings and all decisions are taken by a panel of UNMIK staff
members. The only appeal possible against this internal first instance decision
is the sending of a “memorandum” to the UNMIK Director of Administration. In
contrast, although first instance proceedings before KFOR call for a single
KFOR officer to take a decision, the appeals process incorporates many elements
of proper judicial proceedings, including an opportunity for individuals to be
heard or legally represented. It remains impossible to obtain information from
UNMIK about the status of pending claims or any statistical information about
the number or type of claims resolved. It appears that even claims regarding
which UNMIK has been found liable remain pending indefinitely, as the UN has
apparently allocated no portion of its budget for the payment of such claims.
KFOR, on the other hand, provides such information and has provided financial
compensation in a number of cases. However, in spite of the good faith efforts
of KFOR to resolve claims against them, the system still has some shortcomings.
First and foremost amongst these shortcomings is the limitation of the system
to claims against KFOR Headquarters in Prishtine/Pristina. Individual KFOR
contingents can choose to be subject to the jurisdiction of the KFOR claims
commission, but there is neither any obligation nor any general public pressure
that contingents should accept this jurisdiction. Therefore, individuals
wishing to ask for compensation or damages from country contingents may not be
able to do so through the limited claims system established by KFOR within
Kosovo.”
The Inter-Pillar Working Group on Human Rights (IPWGHR) under the auspices of
the Human Rights Oversight Committee (see below, paras. 94-96) currently
investigates the claims commission set up by UNMIK resulting from UNMIK
Regulation 2000/47.
62. Under Sections 2 and 3 of UNMIK Regulation
no. 2000/47 of 18 August 2000, KFOR, KFOR personnel, UNMIK, and
UNMIK personnel “shall be immune from any legal process”. This rule is relevant
for the present opinion for two reasons: it is a limit for reform proposals,
but it is also itself a human rights concern.
63. The immunity of UNMIK and KFOR (and their
personnel) is a limit for reform proposals. It is an expression of a rule which
is generally agreed upon and according to which international organizations
enjoy immunity from legal process by courts of member states and other
international institutions. The purpose of this rule is to ensure that
international organisations can perform their tasks without undue and
uncoordinated interference by courts from individual states and other
international institutions with their respective different legal systems.
Therefore, it is with good reason that international organisations and their
organs, such as the UN and UNMIK (and their personnel) or NATO and KFOR (and
their personnel), are not subjected to legal processes in member states and
before other international institutions.
64. It should be noted that an important
distinction exists between the immunity of an international organization as
such and the immunity of its representatives. In the present context, the
immunity of the organization is the primary focus because the first question
for every human rights mechanism is whether a determination can be made if a
particular act was in conformity with human rights obligations or not. It is
only a second question whether individuals who are responsible for such
violations are subject to appropriate sanctions. The same distinction is
clearly visible, in respect of States, in the case-law of the European Court of
Human Rights: this Court is not concerned with the criminal or civil
consequences of the misconduct of a state agent, but only with the possible
accountability on the part of the relevant State.
65. Immunity of international organisations does
not imply that all that an international organisation does can be presumed to
be legal and well-founded. This can also be inferred from Section 6.1 of the
same UNMIK Regulation no. 2000/47 of 18 August 2000 which provides that the immunity
“is in the interests of KFOR and UNMIK and not for the benefit of the
individuals themselves. The Secretary- General shall have the right and the
duty to waive immunity of any UNMIK personnel in any case where, in his
opinion, the immunity would impede the course of justice and can be waived
without prejudice to UNMIK”. Section 6.2 of the Regulation provides that
“requests to waive jurisdiction over KFOR personnel shall be referred to the
respective commander of the national element of such personnel for
consideration”. In this respect, the Commission notes that, while there is
generally no possibility to
issue criminal proceedings against UNMIK personnel in Kosovo, according to
information submitted by UNMIK, some members of UNMIK staff have indeed been
convicted and sentenced by the Kosovo judiciary (mostly by panels composed with
an international judge). The Commission finds that the practice of the UN
Secretary-General of waiving immunity after having been so requested by the
Special Representative (SRSG) should be
continued.
Criminal proceedings in respect of KFOR
personnel in their respective sending states are possible.
66. Both the general purpose of the immunity of
international organisations as well as UNMIK Regulation no. 2000/47 of 18
August 2000 itself make it clear that immunity does not exclude the
establishment of independent legal review mechanisms which are legally an
integral part of the international organisation itself (this is the case, for
example, of the Administrative Tribunal of the United Nations) or which are
established by way of a treaty to which the international organisation
concerned is party and for which it possesses a treaty-making power.
67. In the following (see paras. 101-141 below)
the Commission proposes the establishment of two human rights mechanisms for
Kosovo, one as a most immediate solution and the other one to be realised in
the medium-term. The short-term solution is limited to establishing an
independent review mechanism which is internal to the respective international
organisation (and also merely advisory). It therefore does not raise a problem
with respect to immunity.
68. The medium-term solution presupposes that
UN/UNMIK and NATO/KFOR possess a treaty-making power with respect to the
setting up of a Human Rights Court for Kosovo. Such a treaty-making
power can be presumed to exist, at least as far as it does not hinder the
respective international organisation to effectively perform its functions. Since
UNMIK and KFOR are administering a territory to an extent which is comparable
to that of a state and since a state must, in principle, grant access to courts
(see Article 6 ECHR) and provide effective remedies (see Article 13 ECHR), it
is hard to see why the establishment of a mechanism which provides for an
effective legal remedy should hinder the respective international organisations
to perform their tasks.
69. On the contrary, it would seem to raise a
human rights problem if an international organisation which administers a
territory would not be able to set up an independent human rights mechanism,
including by way of treaty. This is because, as the European Court of Human
Rights has recognised in the case of Al-Adsani v. United Kingdom
(paras. 52-67), (state) immunity is an implicit restriction of the right to
access to a court (see Article 6 ECHR). Therefore, such a restriction is only
acceptable as far as it is necessary to achieve the purpose of the rule of
immunity. Indeed, it would not seem possible to say that the setting up of a Human Rights Court as such would hinder UNMIK or KFOR
and their personnel to perform their respective tasks. This could only be true
if the proposed human rights mechanism would not, in some of its specific
aspects, sufficiently take the particular tasks of those international
institutions into account.
70. It follows that the establishment of a human
rights mechanism for Kosovo is not excluded a limine by the rule of
immunity “from any legal process”.
71.
The Venice Commission has beenrequested by the Parliamentary Assembly to look into the human rights situation
in Kosovo, with a view to designing a mechanism or mechanisms allowing for
adequate remedies in respect of alleged breaches of human rights.
72.
One should be fully conscious of the complexity and pervasiveness of the
problems Kosovo is facing today. A meaningful and effective protection of the
human rights and freedoms of the people in Kosovo is only one facet of these
problems. The procedural side of it is, again, only one element of this facet.
The Commission is thus fully cognizant that its mandate concerns only a very
limited aspect of the issues raised by the need to protect human rights in
Kosovo. The Commission considers nevertheless that an adequate solution to this
aspect of the problem could improve the situation of the Kosovo people. In its
analysis of this matter, the Commission will therefore be guided by the will to
provide pragmatic proposals on how to respond to the human rights challenge in
Kosovo.
73.
Many of the problems in Kosovo do not call for a merely legal response
and therefore fall outside of the scope of the present opinion. The Commission
wishes to underline in this context that the OSCE Mission in Kosovo, Department
of Human Rights and the Rule of Law, for example, is addressing these issues in
an excellent and efficient manner. The compilation of a “Remedies catalogue”
and the setting up of a network of human rights experts within each
municipality are only the latest examples of their commendable initiatives.
74.
A general and important problem which does fall within the scope of the
Commission’s mandate is the current lack of an adequate and consistent
mechanism for the examination of alleged human rights breaches by the two
“institutional” sources of potential human rights violations in Kosovo – UNMIK
(as well as the Provisional Institutions of Self-Government, which act under
the supervision of UNMIK) and KFOR.
75.
There is no international mechanism of review with respect to
acts of UNMIK and KFOR.
76.
In the 46 European States which are members of the Council of Europe, an
international mechanism is principally provided by the European Convention on
Human Rights (hereinafter “the ECHR” or “the Convention”) and the other main
Council of Europe treaties and consists of the jurisdiction of the European
Court of Human Rights (hereinafter “the European Court” or “the Strasbourg
Court”) over alleged breaches of that Convention by any State which has
ratified it, as well as of the supervisory mechanisms set up by the other
Treaties.
77.
According to UN SC Resolution 1244, all UN Member States are committed
“to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia” and they regard
Kosovo as being part of the Federal Republic of Yugoslavia, now the State Union of Serbia
and Montenegro.Serbia and Montenegro
has ratified the European Convention on 3 March 2004, without any territorial reservation in respect of
Kosovo. Nevertheless, by virtue of Resolution 1244, Serbiaand Montenegro
does not, as a general rule, exercise “jurisdiction” within the meaning of
Article 1 ECHR over Kosovo and cannot therefore be held accountable for human
rights violations stemming from acts or omissions which are outside of its
control. Serbiaand Montenegro
remains of course accountable for any possible such violations committed in
Kosovo or in respect of Kosovo people by its own state organs (which in
the Commission’s view may include a parallel court system).
78.
Applications for alleged human rights breaches resulting from actions or
failures to act by UNMIK do not generally come within the jurisdiction of the
European Court of Human Rights. It cannot, in particular, be maintained that
the Convention, as well as the jurisdiction of the European Court of Human
Rights in Kosovo, applies because Serbia and Montenegro has ratified the
Convention and because UNMIK should be seen as a “care-taker” for Serbia and
Montenegro, having assumed the obligations by Serbia and Montenegro under the
European Convention of Human Rights or having succeeded in those obligations.
Such a theory would not be limited to the Convention, and indeed not to Kosovo.
It implies the assertion that all UN interim administrations would have to
respect all treaties which the state on whose territory they operate, has
concluded, and continues to conclude. Such a rule would contradict the need for
the UN to establish and implement a mandate which is unrestrained by
limitations which are created independently by individual member states or
other third parties. Indeed the UN Charter provides that the Security Council
may, under Chapter VII, take binding decisions, such as Resolution 1244, and it
states in its Article 103 that the obligations of the Charter “shall prevail”
over “obligations under any other international agreement”. By making this
point the Commission does not, however, mean to say that the powers of the UN
Security Council, when acting under Chapter VII of the UN Charter, are
unlimited (“legibus solutus”). Such limitations, however, derive from general
international law, and not from a regional treaty, such as the ECHR. Indeed,
the Commission considers it necessary that the UN system itself develop
mechanisms which must ensure the respect for the limitations on UN action, as
they derive from general international law (in particular human rights law), in
individual cases. It is precisely the purpose of the following recommendations
to bring about such a mechanism.
79.
As to applications for alleged human rights breaches resulting from
actions or failures to act by KFOR troops, the matter is very complex.
KFOR, unlike UNMIK, is not a UN peace-keeping mission. Therefore, although KFOR
derives its mandate from UN SC Resolution 1244, it is not a subsidiary organ of
the United Nations. Its acts are not attributed in international law to the
United Nations as an international legal person. This includes possible human
rights violations by KFOR troops. It is more difficult to determine whether
acts of KFOR troops should be attributed to the international legal person NATO
(in which case the jurisdiction of the ECHR could not be established against
the impugned act) or whether they must be attributed to their country of origin
(which means that the jurisdiction of the ECHR could be established if the
state whose troops acted is a member of the Council of Europe). Not all acts by
KFOR troops which happen in the course of an operation “under the unified
command and control” (UN SC Resolution 1244, Annex 2, para. 4) of a NATO
Commander must be attributed in international law to NATO but they can also be
attributed to their country of origin (see paras. 13-14 above). Thus, acts by
troops in the context of a NATO-led operation cannot simply all be attributed
either to NATO or to the individual troop-contributing states.
There may even be difficult intermediate cases, such as when soldiers are
acting on the specific orders of their national commanders which are, however,
themselves partly in execution of directives issued by the KFOR commander and
partly within the exercise of their remaining scope of discretion.
81.
Such an option raises a number of questions. In the first place, the
United Nations, a world-wide organisation, would have to agree to becoming
subject to the jurisdiction of the European Court,i.e. a regional body, while there exist specific mechanisms of supervision by
the Human Rights Committee
and the other UN Treaty Bodies.
82.
Even assuming that the United Nations wished to subject itself to the
jurisdiction of the Strasbourg Court, the rather complex question of whether a
treaty concluded by the United Nations and/or NATO is capable of conferring
jurisdiction ratione personae on the Strasbourg Court would still need to be addressed. Articles
33 and 34 of the ECHR provide that applications can only be submitted to the European Court if they are directed against a State which
is a contracting party to the ECHR. Quite apart from the fact that neither the
United Nations (or UNMIK) nor NATO can be regarded as States, the fact of
becoming parties to an agreement with the Council of Europe in connection with
the ECHR will not make them parties to the ECHR itself. The latter prospect is
already precluded by the fact that under Article 59 the ECHR is only open to
signature by member States of the Council of Europe, and that according to
Article 4 of the Statute of the Council of Europe, only European states can be
members of the Council of Europe. Indeed, the preambles to the two recent
agreements concluded between UNMIK and the Council of Europe relating to two
other Council of Europe Conventions, the Anti-Torture Convention and the
Framework Convention on the Protection of National Minorities respectively,
explicitly stipulate that the implementation of these texts will not result in
UNMIK becoming a party to the two conventions in question.
84.
The issue of jurisdiction ratione personae of the Strasbourg Court in relation to Kosovo is a very difficult
one to be solved. Even
if the United Nations, NATO and the non-European NATO member States would undertake the obligation to execute
the Strasbourg Court’s
judgments, the question remains whether the latter court would have
jurisdiction to pronounce any judgment vis-à-vis these organisations and
States. Under the ECHR system, this would require them to accede to the
Convention, which would in turn necessitate a modification of the ECHR as well
as of the Statute of the Council of Europe, as would indeed be the case in the
event of accession by the European Union or the European Community. Such a
drastic measure is presumably unsuited to dealing with what must be regarded as
a transitional problem of limited duration.
85.
For the aforementioned other two Council of Europe conventions in the
human rights field, with respect to which agreements were signed recently, the
matter was less problematical. Indeed, CPT issues non-binding reports and
recommendations, which initiate dialogue with the state concerned. The Advisory
Committee on the Framework Convention for the Protection of National Minorities
examines state reports and then submits the relevant opinions to the Committee
of Ministers of the Council of Europe, which draws conclusions that are, again,
non-binding. Unlike the European Court of Human Rights, neither body examines
individual complaints in an adversarial procedure in respect of a respondent
State, culminating in a binding decision whose enforcement is placed under the
supervision of the Committee of Ministers.
86.
The conclusion, therefore, is that in order to establish jurisdiction ratione
personae for the Strasbourg Court,the Convention would have to be amended. This procedure would require
parliamentary proceedings in 46 States. In addition, the Statute of the Council
of Europe should also be modified. Proceeding to such amendments would indeed
require a considerable amount of time and political will. It may be true that a
similar construction has already been envisaged and studied with a view to
allowing the European Communities to accede to the Convention. Even assuming
that there were the necessary political will, however, ratification by all
States would require a very significant amount of time.
87.
The Commission considers that the possibility of the United Nations
acceding to the Convention in respect of the administration of Kosovo deserves
further examination, especially for reasons of principle: it is certainly
unwarranted to leave the population of a territory in Europeindefinitely without access to the Strasbourg Court.
The impact of such solution on the problems which it is facing today, however,
seems very limited.
88.
In order to avoid the complications of a (temporary) adaptation of the
ECHR by an amending protocol, one could consider to establish a system for the Strasbourg Court’s jurisdiction in parallel to the
actual ECHR system. This would involve that the Council of Europe, with the
consent of all member States (including Serbia and Montenegro), conclude an agreement with the United
Nations and possibly also with NATO and those NATO States which are not Council
of Europe members. Such an agreement could then lay
down the obligation for UNMIK and the interim administration, and possibly also
KFOR, to comply with the substantive provisions of the ECHR and its Protocols,
and could also stipulate that jurisdiction be assigned to the Court concerning
any complaint against UNMIK and the interim Administration, and possibly also
KFOR for not complying with these provisions. If KFOR were to be included,
those countries participating in the operation which are not members of the
Council of Europe would need to consent to the Court’s jurisdiction. Such an
agreement might also regulate such matters as the composition of the Court when
acting under the agreement - or even the setting up of a special section of the
Court for this purpose -, the way the rule on prior exhaustion of domestic
remedies should be applied, waivers of the immunity with respect to UNMIK and
KFOR staff, etc. The Court would also have to give its explicit consent to such
an extension of the jurisdiction of the Court.
90.
The Commission therefore finds that, today, it would be more appropriate
to focus on the setting up of specific mechanisms of independent review
of UNMIK acts and regulations and of KFOR acts, rather than focusing on the
establishment of jurisdiction by the European Court of Human Rights.
91.
It is worth underlining at the outset that the main obstacle to setting
up a mechanism of review of UNMIK and KFOR is their character as international
organisations (see above, point V.). Such character prevents ordinary courts in
Kosovo from exercising such a review. Nevertheless, it must be recalled that in
Kosovo UNMIK and KFOR carry out tasks which are certainly more similar to those
of a State administration that those of an international organisation proper.
It is unconceivable and incompatible with the principles of democracy, the rule
of law and respect for human rights that they could act as State authorities
and be exempted from any independent legal review. Yet, due consideration must
be given to their legal nature.
92.
It might be argued that there is no need for supervision of acts by
UNMIK, as UNMIK is fully committed to respecting human rights. The Commission considers
however that the fullest commitment can not rule out the possibility of making
mistakes. Review of UNMIK acts remains necessary, for the following reasons.
93.
First of all, the legal basis of UNMIK’s commitment is incomplete. This
is so even though UNMIK’s obligation under Resolution 1244 to “protect and
promote human rights” requires it to be guided by internationally recognized
human rights standards as the basis for the exercise of its authority,
and irrespective of the fact that the first UNMIK Regulation,
made domestic law applicable only in so far as it was compatible with human
rights standards and required all persons undertaking public duties or holding
public office to observe internationally recognized human rights standards in
the course of their functions, and it mandated non-discrimination in the
implementation of public duties and official functions.
94. Moreover, even though UNMIK regulations
are inspired by human rights standards and designed to respect them, this does
not rule out the possibility that in practice a regulation may breach
individual rights. The need for an effective and independent remedy in such
cases therefore remains, irrespective of the undoubtedly high quality of the
internal mechanisms of control of human rights compatibility.
95.
Most importantly, although UNMIK or KFOR acts are generally
deemed to be respectful of those standards, there have been numerous occasions
on which the Ombudsperson, which together with the OSCE is competent to address
human rights issues in respect of UNMIK,
has noted that they were not. In this context, the Commission wishes to
underline that while it was reasonable to expect and accept that UNMIK’s of
KFOR’s accountability was limited in the initial phases of the interim
administration, such accountability has nowadays, in the Commission’s opinion,
become essential.
96.
In the Commission’s opinion, it is therefore important that a system of
independent review of UNMIK and KFOR acts for conformity with international
human rights standards be established as a matter of urgency.
100.
On account of its composition this Committee does not represent an independent
review body. In addition, while this body is in principle useful as a means
of mainstreaming human rights in policy development, in the light of its
informal and non-public working methods the Commission does not view it as a
sufficient or satisfactory review mechanism. In addition, the Commission has
been informed that the HROC only met three times, and not in the last two
years.
101.
The Legal Affairs Committee of the Parliamentary Assembly has mentioned
the idea of establishing a local human rights chamber, perhaps similar to the
Human Rights Chamber for Bosnia and Herzegovina.
102. The latter Chamber was set up by virtue of
Annex 6 to the Dayton Agreements of 14 December 1995 as one of the two components, alongside the
Ombudsperson, of the Human Rights Commission for Bosnia and Herzegovina. The Chamber had 14 members, 4 of whom were
appointed by the Federation of Bosnia and Herzegovina, 2 by the Republika Srpska and 6 by the
Committee of Ministers of the Council of Europe, which meant that the
membership was half international. The Committee of Ministers made its
appointments on the basis of Resolution 93 (6) of 9 March 1993, Article 1 of
which provides that the Committee, at the request of a European State that is
not yet a member of the Council of Europe, can designate individuals to sit in
a court or on another body responsible for monitoring respect for human rights
as established by the State within its judicial system.
103.
This Chamber had jurisdiction to consider complaints about violations of
the ECHR and its Protocols, including discrimination in the enjoyment of rights
and freedoms under fifteen other human rights treaties. Applications could be
submitted by the Ombudsperson, any natural or legal person or group of persons,
and either one of the entities (the Federation of Bosnia and Herzegovina and the Republika Srpska) against either of
the entities or against the State itself. The judgments of the Chamber were
binding and irrevocable, and could also provide for friendly settlements of
disputes.
104.
An agreement could similarly be concluded between the United Nations
(UNMIK) and possibly NATO (including NATO member States), on the one hand, and
the Council of Europe on the other, on the setting up of a provisional Human
Rights Court for Kosovo to deal with complaints about violations of the ECHR
and its Protocols by UNMIK, the Provisional Institutions of Self-Government and
possibly NATO (including NATO member States), also stipulating that this court
should base its procedures and case-law on those of the European Court. If the
Human Rights Court is to wield sufficient national and international authority,
it must also have a mixed, mainly international membership, with a minority of
the candidates (e.g. 4) being nominated half by the Albanian community and half
by the Serbian and other national minorities, and the majority (e.g. 5) by the
Committee of Ministers of the Council of Europe, by an instrument analogous to Resolution
(93) 6. The nomination for one of the latter five judges should be effected in
agreement with the Special Representative of the Secretary General, similarly
to the “juge national” in the European Court. The judges could be appointed by the European Court or its President, in order to indicate that
the Human Rights Court is a kind of predecessor to the European Court guided by the latter’s case-law.
105.
Unlike the Human Rights Chamber for Bosnia and Herzegovina, the Human Rights Court for Kosovo should be empowered to accept
applications lodged either by individuals or by the Ombudsperson on their
behalf, with their agreement, concerning actions and omissions by the international
authorities in Kosovo (when reviewing acts or omissions by UNMIK, the
Chamber would have to sit in an exclusively international composition) and the agreement
should therefore comprise a specific provision concerning the waiving of the
immunity of the Special Representative and UNMIK personnel, and possibly also
that of NATO. It would be a new phenomenon for a (quasi-) international court
to hold jurisdiction over an international organisation to which it does not
belong. However, the situation would be the same if the European Court were granted jurisdiction over UNMIK, or
possibly KFOR, or for that matter once the European Union or European Community
has acceded to the ECHR.
106.
Like the Human Rights Chamber of Bosnia and Herzegovina, and unlike the
European Court of Human Rights, the Human Rights Court for Kosovo should be
given the power to annul (at least certain) decisions and acts by UNMIK and/or
KFOR. It should also be empowered to allocate appropriate redress or
compensation.
108.
The setting up and operation of this court will obviously encounter
difficulties. However, such obstacles would be less formidable and could be
sooner overcome than if the European Court itself were assigned jurisdiction over UNMIK
and possibly KFOR, subject to the agreement of all States party to the ECHR.
109.
Obviously, creating a special court would be more expensive than
extending the European Court’s jurisdiction. This additional cost would
have to be covered as part of the implementation of Security Council Resolution
1244 (1999) regarding Kosovo. Experience with the Human Rights Chamber for Bosnia and Herzegovina shows that all the parties involved have to
be committed to the creation of the Human Rights Court, including to guaranteeing a sound financial
basis.
110.
It should be noted that the proposed Human Rights Court for Kosovo is
not a regional institution, but rather an institution established at the
universal level with the agreement of the United Nations and with input from
the regional level.
111.
The Commission views the setting up of a Human Rights Court as an appropriate and necessary step
towards ensuring an adequate level of human rights protection in Kosovo in the
medium-term. Such setting up should be planned in the context of the foreseen
restructuring of the provisional administration of Kosovo and amendment of the
Constitutional Framework. At the moment when UNMIK and KFOR are replaced by
other international institutions, the foregoing recommendation also applies, mutatis
mutandis, to such other institutions.
112.
Since the Commission considers that such restructuring is certainly also
going to take a certain amount of time, it is appropriate, in the light of the
urgent need of addressing the issue of the lack of remedies for alleged human
rights violations, including on the part of UNMIK and KFOR, to also envisage provisional, short-term
solutions.
113.
In the Commission’s opinion, each of the three main sources of potential
human rights violations in Kosovo – UNMIK, KFOR and the Provisional Institutions
of Self-Government - calls for a specific interim review mechanism.
115.
This could be done through the setting up of an independent Advisory Panel
which would be competent to examine any complaint lodged by any person
claiming that his fundamental rights and freedoms have been breached by any laws,
regulations, decisions, acts and failures to act emanating from UNMIK, but only
in cases where the Ombudsperson has found human rights breaches, without
his/her report resulting in UNMIK recognising its responsibility for the human
rights violation. Indeed, the Ombudsperson is already competent to receive
individual applications concerning alleged human rights violations or abuse of
authority in respect of the Interim Civil Administration: the Commission is of
the view that the role of the Ombudsperson should not be undermined or duplicated.
116.
The possibility for the individual (or the Ombudsperson on behalf of
applicants, with their agreement) to apply to the Advisory Panel would provide
UNMIK with the possibility of receiving confirmation through its own body of
independent experts that a situation is indeed in breach of human rights
standards. The Commission considers that UNMIK should commit itself to
accepting the finding should its own panel express the view that UNMIK
is violating human rights.
121.
The Advisory Panel would
express an opinion, by majority vote, as to whether or not there has been a
breach of the applicant’s fundamental rights and freedoms. Such determinations
would be rendered in English, Albanian and Serbian and would be promptly made
public.
122.
The Advisory Panel would
have advisory functions. Nevertheless, in the regulation setting it up, UNMIK
would commit itself to accepting its findings, except if the SRSG personally
determines that extraordinary reasons exist that do not make this possible.
a)
If the finding of a violation concerns a general act or
regulation, UNMIK should take the appropriate legal action (e.g. repeal or
amend the regulation);
b)
If the finding concerns an individual case, UNMIK
should provide appropriate redress (ranging from public recognition of the
violation, to restitutio in integrum, and to possible compensation). In
this respect, the Commission considers that the UNMIK regulation setting up the
Advisory Panel should also
explicitly provide for the possibility of the applicants to seek appropriate
individual measures from UNMIK, following the Panel’s finding of human rights
breaches in their own case.
c)
Should UNMIK, in exceptional cases, disagree with the
findings of the Advisory Panel,
it should give reasons for such disagreement.
124.
The Commission is conscious that this Advisory Panel would not offer the same guarantees as an
independent judicial body such as the Human Rights Courtfor Kosovo. It considers however that it would constitute a significant
improvement as it would provide the public with a visible sign that UNMIK does
not shield its acts from scrutiny by a body of independent members of a human
rights panel. In this respect, it seems essential that, as suggested above, the
decisions by the Advisory Panel
should be translated into both Albanian and Serbian and be promptly made
public. It would be equally important that UNMIK commit itself to giving
reasons – in due time and publicly – why it would exceptionally not follow the finding
of the panel.
129.
The ultimate responsibility of the KFOR Commander and KFOR’s immunity of
process do not exclude, however, that KFOR establish review procedures within
its own organisational structure which ensure some form of independent
quasi-judicial review. Indeed, in his Detention Directive
the KFOR Commander has already provided for an embryonic form of review
procedure by requiring that any decision on extending detention beyond an
initial period of 72 hours must be made upon a request by the Legal Adviser.
The disadvantage of this review procedure is not so much that it is purely
advisory, but that the review is conducted only by a soldier who remains within
the chain of command and within the administrative hierarchy. It is therefore
currently not institutionally ensured that the Commander receives an
independent legal advice, although experience shows that most Legal Advisers
perform admirably in their position.
131.
One additional safeguard should be contemplated. Justice must not only
be done but must also be seen to be done. It would therefore be desirable if
the advice which the KFOR Commander receives from the envisaged Advisory Board
would be notified to the detainee concerned and, upon his informed consent, to
the public. On the other hand it is clear that the KFOR Commander may have
valid reasons for keeping certain sensitive information from being known by
concerned individuals and by the public. The problem is well-known within
national legal systems. It should therefore be provided that the KFOR Commander
retain the power to declare certain pieces of information which he deems
sensitive not to be communicated to a detainee or to the public. This power
would enable the Commander to provide the Advisory Board with all relevant
information which it would then, in part, treat confidentially and in camera
in order to form its opinion.
133.
The answer to the question whether the suggested Advisory Board can be
established by the KFOR Commander himself, or whether this would require a
decision on the level of NATO (and/or even the participating member states)
depends on the internal rules of NATO and on the pertinent international
military arrangements. The Commission does not wish to definitively pronounce
itself on this matter. The Commission does, however, find that the purely
advisory character of the suggested Advisory Board should make matters easier.
At any rate, the Commission wishes to stress that the establishment of an
independent advisory review of decisions or acts by KFOR (and/or participating
troops) would constitute a minimum form of institutional human rights
protection under the circumstances and that all competent decision-makers, be
they states or individual office-holders (such as the KFOR Commander), should
strive and work together to bring such a mechanism about.
134.
The Provisional Institutions of Self-Government of Kosovo have
competence in numerous fields: Economic and financial policy; Fiscal and
budgetary issues; Administrative and operational customs activities; Domestic
and foreign trade, industry and investments; Education, science and technology;
Youth and sport; Culture; Health; Environmental protection; Labour and social
welfare; Family, gender and minors; Transport, post, telecommunications and
information technologies; Public administration services; Agriculture, forestry
and rural development; Statistics; Spatial planning; Tourism; Good governance,
human rights and equal opportunity; and Non-resident affairs.
135.
Judicial supervision is nowadays only foreseen in respect of the
compatibility of laws adopted by the Assembly, including the international
legal instruments specified in Chapter 3 on Human Rights, with the
Constitutional Framework.
136.
However, the Special Chamber of the Supreme Court for Constitutional
Matters, provided for in the Constitutional Framework, has so far not been set
up.
137.
In the Commission’s view, it is urgent to proceed with the setting up of
this Special Chamber.
138.
It needs to be underlined that laws adopted by the Assembly are
promulgated by the SRSG. In practice, it is not uncommon that, when the SRSG
refuses to promulgate a law, instead of sending it back before the Assembly, he
proceeds himself with the necessary amendments. This practice - about which the
Commission has certain reservations – raises the question of whether the thus
amended laws can still be considered as “Assembly laws” and thus be subjected
to review by the Special Chamber of the Supreme Court. The Commission is of the
view that, inasmuch as the content of a law stems directly from UNMIK, the
review of such law would have to be carried out by the UNMIK Advisory Panel (see
paras. 114-124 above). The Commission is cognizant of the fact that even the
mere promulgation implies that the SRSG is convinced that the law in question
complies with, inter alia, human rights standards; it considers
nevertheless that this should not lead to depriving the Special Chamber of
jurisdiction over all Assembly Laws.
139.
It would also seem necessary to extend the Special Chamber’s
jurisdiction over individual human rights cases, i.e. over allegations by any
individual that his/her human rights have been breached on account of any act
or failure to act by any Provisional Institution of Self-Government. This
would, however, require the agreement of the SRSG, under whose authority these
institutions still function. Indeed, this possibility would complement the
right to appeal to the panel which is competent in respect of acts of UNMIK and
the right to have a decision by KFOR on continued detention reviewed by the
KFOR Advisory Board: people in Kosovo would then have a remedy against acts by
any authority in Kosovo.
140.
It would seem appropriate that the Special Chamber be composed of five
judges – 3 local (2 from the majority and 1 from the minority communities) and
2 international judges. The latter could be proposed by the President of the
European Court of Human Rights and nominated by UNMIK.
141.
This Special Chamber would have to be adequately staffed and funded, in
order for it to process the human rights applications promptly and without
neglecting its other tasks under Chapter 9.4.11 of the Constitutional
Framework.
142.
The Parliamentary Assembly has requested the Commission to address the
question whether the State Union of Serbia and Montenegrowould need to be a party to an agreement extending the jurisdiction of the
European Court of Human Rights over the international civil administration in
Kosovo. This question is part of the more general question of the role of Serbiaand Montenegro
with impact to the possible establishment of human rights review systems for
Kosovo.
143.
In the Commission’s opinion, the role of Serbiaand Montenegro
with respect to the possible establishment of a human rights mechanism for
Kosovo depends on what kind of arrangement is envisaged.
144.
UNSC Resolution 1244 reaffirms that Serbiaand Montenegro
is the territorial sovereign over Kosovo but, at the same time, it excludes Serbiaand Montenegro
from exercising jurisdiction over Kosovo (see paras. 9-10 above). Serbiaand Montenegro
is a member of the Council of Europe and a state party to the European
Convention on Human Rights. This means that the realization of every proposal
which would either affect the territorial status of Kosovo or would require an
amendment of the European Convention at present requires the consent of Serbiaand Montenegro.
145.
Since the Commission does not consider that it is advisable, at present,
to envisage extending the jurisdiction of the European Court of Human Rights over
UNMIK and KFOR as a matter of priority, the question of a possible amendment of
the European Convention on Human Rights, and of the need for agreement by Serbiaand Montenegro,
does not arise.
146.
The Commission has rather suggested to pursue a short-term and a medium-term
solution.
147.
The proposed solution to be realised in the short term consists in
essence, as explained above, in establishing independent quasi-judicial
advisory panels which are competent to review acts by UNMIK, KFOR and such acts
by KFOR troops which may not be attributed to KFOR as an entity. Since such
panels are, from a legal point of view, not only advisory but also internal to
UNMIK or KFOR and are only competent to review acts by UNMIK or KFOR (including
KFOR troops), which derive their authority from UN SC Resolution 1244, these
panels do not affect the status of Kosovo and therefore no international legal
position of Serbia and Montenegro.
148.
The proposed solution to be achieved in the medium-term consists in
setting up a Human Rights Courtfor Kosovo (see paras. 101-112). This can be done on the basis of a UN SC
Resolution or, in the exercise of the respective treaty-making powers of UNMIK
and KFOR, by way of an international treaty. A UN SC Resolution would obviously
not require the consent of Serbiaand Montenegro.
An international treaty would only require the participation of Serbiaand Montenegro
as far as it would affect the status of Kosovo and therefore an international
legal position of Serbiaand Montenegro.
Since the proposed solution is limited to establishing a competence to review
acts by UNMIK, KFOR and KFOR troops, as well as PISG under the control of
UNMIK, a participation of Serbiaand Montenegro
is not, from a strictly legal point of view, required. However, in the opinion
of the Commission, it does seem advisable to make Serbiaand Montenegro
participate in the creation of any arrangement which can be viewed as having to
be taken into account when the question of the long-term status of Kosovo is
addressed.
149.
The Commission has been requested by the Legal Affairs Committee of the
Parliamentary Assembly of the Council of Europe to look into the human rights
situation in Kosovo with a view to designing possible human rights review
mechanisms. The Commission is conscious that review mechanisms represent only a
limited aspect of the issues raised by the need to protect human rights in
Kosovo. Yet, the Commission is convinced that an adequate solution to this
aspect could improve the situation of the Kosovo people, and in the preparation
of this opinion it has thus been guided by the intention to provide pragmatic
proposals on how to respond, at the institutional level, to the human rights
challenge in Kosovo.
150.
In respect of the possible future extension of the jurisdiction of the
European Court of Human Rights over the international organisations temporarily
administering Kosovo, the Commission considers that accession by the UN or NATO
to the European Convention on Human Rights, assuming that there were the
necessary political will, would require a prior amendment of the ECHR and of
the Statute of the Council of Europe, which would require a lengthy process.
151.
A system of jurisdiction of the European Court of Human Rights in
parallel to the existing ECHR system could also be conceived. This solution
would avoid the need for an amending protocol to the ECHR, but would require an
agreement between the Council of Europe and the UN and possibly NATO, and also
with each NATO non-CoE member-States. This process would still require a rather
long period of time.
152.
Furthermore, it must also be borne in mind that it would also probably
take a long time for the Court to reach its first decision on an application
against UNMIK or the interim administration, or possibly against KFOR.
153.
Accordingly, the Commission does not view the extension of the
jurisdiction of the European Court of Human Rights over UNMIK and KFOR as an
option capable of providing a speedy and effective impact on the current human
rights situation in Kosovo, given that such extension risks to require a
lengthier period than the duration of the provisional administration itself for
Kosovo.
154.
As regards the possible setting-up of a Human Rights Court for Kosovo, the Commission considers that an agreement
could be concluded between the United Nations (UNMIK) and possibly NATO
(including NATO member States), on the one hand, and the Council of Europe on
the other, on the setting up of a provisional ad hoc court to deal with
complaints about violations of the ECHR and its Protocols by UNMIK, the
Provisional Institutions of Self-Government and possibly NATO (including NATO
member States), also stipulating that the Human Rights Court for Kosovo should
base its procedures and case-law on those of the European Court.
155.
The Human Rights Court for Kosovo should have a mixed, mainly international membership, with a minority
of the candidates (e.g. 4) being nominated half by the Albanian community and
half by the Serbian and other national minorities, and the majority (e.g. 5) by
the Committee of Ministers of the Council of Europe, by an instrument analogous
to Resolution (93) 6. The nomination for one of the latter five judges should
be effected in agreement with the Special Representative of the Secretary
General, to play a role similar to that of a “juge national” in the European Court. The judges could be appointed by the European Court or its President.
156.
This Human Rights Court
for Kosovo should be empowered to accept applications lodged either by
individuals or by the Ombudsperson on their behalf, with their agreement,
concerning actions and omissions by the international authorities in
Kosovo, as well as the PISG to the extent that they function under the
supervision of SRSG.
157.
The Commission views the setting up of a Human Rights Court for Kosovo as an appropriate and
necessary step towards ensuring an adequate level of human rights protection in
Kosovo. Such setting up should be planned in the context of the foreseen
restructuring of the provisional administration of Kosovo and amendment of the
Constitutional Framework. Since such restructuring is certainly also going to
take a certain amount of time, it is appropriate, in the light of the urgent
need of addressing the issue of the lack of remedies for alleged human rights
violations, including on the part of UNMIK and KFOR, to also envisage provisional, short-term solutions.
158.
In the Commission’s opinion, each of the three main sources of potential
human rights violations in Kosovo – UNMIK, KFOR and the Provisional
Institutions of Self-Government - calls for a specific interim review
mechanism.
159.
As regards UNMIK, an independent Advisory Panel could be set up, which
would be competent to examine complaints lodged by any person claiming that his
or her fundamental rights and freedoms have been breached by any laws, regulations,
decisions, acts or failures to act emanating from UNMIK, but only in cases
where the Ombudsperson has found human rights breaches without his/her report
resulting in UNMIK recognising its responsibility for the human rights
violation.
162.
The Advisory Panel would
express an opinion, by majority vote, as to whether or not there has been a
breach of the applicant’s fundamental rights and freedoms. Such determinations
would be rendered in English, Albanian and Serbian and would be promptly made
public.
163.
The Advisory Panel would
have advisory functions. Nevertheless, in the regulation setting up the panel,
UNMIK would commit itself to accepting the Panel’s finding, except if the SRSG
personally determines that extraordinary reasons exist that do not make this
possible.
a)
If the finding of a violation concerns a general act or
regulation, UNMIK should take the appropriate legal action (e.g. repeal or
amend the regulation);
b)
If the finding concerns an individual case, UNMIK
should provide appropriate redress (ranging from public recognition of the
violation, to restitutio in integrum, and to possible compensation). In
this respect, the Commission considers that the UNMIK regulation setting up the
panel should also explicitly provide for the possibility of the applicants to
seek appropriate individual measures from UNMIK, following the panel’s finding
of human rights breaches in their own case;
c)
Should UNMIK, in exceptional cases, disagree with the
findings of the panel, it should give reasons for such disagreement.
165.
As regards KFOR, and in particular the power to detain, an embryonic form of review procedure already
exists, requiring that any decision on extending detention beyond an initial
period of 72 hours must be made upon a request by the Legal Adviser. It seems
advisable to strengthen the role of the Legal Adviser by adding two independent
lawyers to his review functions, who should not be members of the military and
not within the chain of command or within the administrative hierarchy. Their
inclusion would institutionally ensure that the KFOR Commander receives
independent advice and would thereby reassure the public (in Kosovo and beyond)
that proper human rights standards are applied by KFOR. These two independent
lawyers should preferably be experienced judges and should be readily available
in Pristina. They would be appointed by the KFOR Commander upon the proposal of
the President of the European Court of Human Rights or another appropriate
institution. Their advice should preferably be notified to the detainee concerned and, upon his informed consent, to
the public, while the KFOR Commander would retain the power to declare certain
pieces of information which he deems sensitive not to be communicated to a
detainee or to the public.
166.
The suggested Advisory Board should be competent to review all cases of
detention by KFOR troops. In addition it could be made competent to review all
cases of allegations of serious human rights violations by KFOR troops. Such
allegations would include complaints against house searches and physical
mistreatment of persons. On the other hand, it would not seem to be necessary
to grant a possibility to review KFOR acts such as the setting up of roadblocks
as such.
167.
The Advisory Board should be competent to provide appropriate redress or
compensation.
168.
As regards the Provisional Institutions of Self-Government, it is urgent
to establish the Special Chamber of the Supreme Court on Constitutional
Matters, which under the Constitutional Framework is competent to review the
compatibility of laws adopted by the Assembly with the Constitutional
Framework, including the international legal instruments specified in Chapter 3
on Human Rights.
169.
It would also seem necessary to extend, with the agreement of the SRSG,
the Special Chamber’s jurisdiction over individual human rights cases, i.e.
over allegations by any individual that his/her human rights have been breached
on account of any act or failure to act by any Provisional Institution of
Self-Government.
170.
It would seem appropriate that the Special Chamber be composed of five
judges – 3 local (2 from the majority and 1 from the minority communities) and
2 international judges. The latter could be proposed by the President of the
European Court of Human Rights and nominated by UNMIK.
171.
As regards the role of Serbiaand Montenegro
with respect to the possible establishment of human rights review mechanisms
for Kosovo, in the Commission’s opinion it depends on what kind of arrangement
is envisaged.
172.
The realisation of every proposal that would either affect the
territorial status of Kosovo or would require an amendment of the European Convention
on Human Rights at present requires the consent of Serbiaand Montenegro.
The Commission however does not consider that it is advisable, at present, to
envisage extending the jurisdiction of the European Court of Human Rights over
UNMIK and KFOR as a matter of priority.
173.
The UNMIK Advisory Panel
and the KFOR Advisory Board, which are suggested as a solution to be realised
in the short-term, are, from a legal point of view, not only advisory but also
internal to UNMIK or KFOR and are only competent to review acts by UNMIK or
KFOR (including KFOR troops), which derive their authority from UN SC
Resolution 1244. Accordingly, these panels do not affect the status of Kosovo
and therefore do not affect the international legal position of Serbiaand Montenegro.
174.
The proposed solution to be achieved in the medium-term consists in
setting up a Human Rights Courtfor Kosovo, either on the basis of a UN SC Resolution or by way of an
international treaty concluded in the exercise of the treaty-making powers of
UNMIK and KFOR. A UN Security Council Resolution would obviously not require
the consent of Serbiaand Montenegro.
An international treaty would only require the participation of Serbiaand Montenegro
as far as it would affect the status of Kosovo and, therefore, the
international legal position of Serbiaand Montenegro.
Since the proposed solution is limited to establishing a body with competence
to review acts by UNMIK, KFOR and KFOR troops, as well as Provisional
Institutions of Self-Government under the control of UNMIK, a participation of
Serbia and Montenegro is not, from a strictly legal point of view, required.
175.
The Commission is ready to co-operate with UNMIK, KFOR and the PISG in
the realisation of the proposals made in this report or of any other initiative
aiming at increasing the level of human rights protection in Kosovo, including,
pending the establishment of appropriate review mechanisms, in reviewing, upon
request, regulations and laws prepared by UNMIK or the Assembly of Kosovo.
