Mandate & Applicable Law

The report of the Secretary-General dated 12 July 1999, in paragraph 66, establishes the mandate of the Department of Judicial Affairs by directing "the immediate re-establishment of an independent, impartial and multi-ethnic judiciary." UNMIK Regulation No.1999/24, of 12 December 1999, established the applicable law in Kosovo as the UNMIK Regulations and the applicable law in force in Kosovo on 22 March 1989, in so much as the latter was not in conflict with international human rights standards.

Development

In July of 1999, the Department of Judicial Affairs was established. Shortly thereafter, it was divided into two sections: Prosecution Services, the Court Administration section (PSCA) and Penal Management (PM). An international judicial support component was not set up at that time, even though the possibility of its establishment was considered. Penal Management began its work by setting up the Kosovo Correctional Service for the planned assumption of authority over prisons. PSCA went about the task of creation of the judiciary and, by the end of December 1999, over 300 local judges and prosecutors had been appointed by the SRSG.

In February of 2000, civil unrest and other incidents in Mitrovica led the SRSG to reconsider the issue of international judges. UNMIK Regulation 2000/6, dated 15 February 2000, established the international judges and prosecutors program. Initially, this was meant only for the Mitrovica District Court. However, in the ensuing months it was decided to expand the program to all five of the regional district courts. Consequently, the Department of Judicial Affairs established the third section of the Department, the International Judicial Support Section (IJSS) to support this initiative. This section soon became the largest section within the Department.

Effects of Constitutional Framework

UNMIK Regulation 2001/9 of 15 May 2001, On the Constitutional Framework for Provisional Self-Government in Kosovo and UNMIK Regulation 2001/19 of 13 September 2001, On the Executive Branch of the Provisional Institutions of Self-Government in Kosovo, resulted in the transfer of a number of administrative responsibilities from the Department of Judicial Affairs to the Department of Judicial Administration of the Ministry of Public Services. This, in conjunction with an expansion of the international judges and prosecutors program and incorporation of mechanisms for the fight against organised crime, resulted in a significant reorganisation of the Department.

The former Department of Judicial Affairs has been re-designated as the Department of Justice. It is currently comprised of four sections: the Judicial Development Division (JDD), the Penal Management Division (PMD), the International Judicial Support Division (IJSD) and Office on Missing Persons and Forensics. The portion of the Department that previously dealt with the administration of the local judiciary has been transferred to the Ministry of Public Services.

Despite the reorganisation of the Department to correspond with the constitutional framework, difficulties continue to persist. Essentially, the framework leaves substantive legal and policy decisions as reserved functions, yet transfers the administration of many of these policies to the Department of Judicial Administration of the Ministry of Public Services. As budget formulation is based on the fundamental policies and priorities for Justice, transfer of the budget to the MPS could, to a certain extent, undermine the very powers that the SRSG chose to reserve. As a result of this reorganization, many implementation problems have surfaced. Discussions to resolve these issues are continuing.