UNMIK/FR/032/01
FEATURE RELEASE - 27 April 2001

Criminal justice
Reducing tension between our desire for human rights and the need to ensure law and order

OSCE is not only a pillar of UNMIK, it is alsothe Interim Administration's conscience dedicated toensuring Kosovar's human rights. Thus, while OSCE's second report on the wayKosovo's criminal justice system functions indicates considerable overall improvement during the past six months (September 2000 to February 2001, it also reveals ongoing problems.

Overall, the legal systems monitoring team that prepared OSCE's latest report on criminal justice in Kosovo awards UNMIK good marks for recent efforts to put things right.

But it also calls on the Administration to develop a systematic, strategic approach to underlying issues. There was an unnecessary tension between international human rights laws and the need to ensure law and order the OSCE's report says.  The dilemma was not one of a conflict between security and justice, however. The challenge was to innovate procedures and policies that address the real needs of the courts and law enforcement agencies-while guaranteeing defendants due process and consistency of treatment. Seeking to place limitations on applicable international human rights laws was unlikely to resolve problems of the judicial system, the report urges. Nor would it address existing security concerns.

While warmly welcoming the report and accepting it as a tool for coordinating a comprehensive strategy, the JIAS Department of Judicial Affairs (DJA) explains that its own efforts had to concentrate first on the rehabilitation of the judicial infrastructure. Now these conditions are generally fulfilled the department is concentrating on improving the quality of the judicial system, including the correctional services.

Progress in law procedures and detention...
Improvements during the past six months included a number of developments in the applicable law and greater involvement of international judges and prosecutors.
   
Concerns over bias in the judiciary should be alleviated by a regulation allowing cases to be allocated to an international prosecutor and a panel with a majority of international judges. The DJA's judicial inspection unit was now addressing allegations of judicial misconduct-some 21 investigations to date. And, to ensure an effective disciplinary mechanism, the earlier Advisory Judicial Commission had been restructured as a nine-member Kosovo Judicial and Prosecutorial Council with both local and international members.  It advises the SRSG on appointments and complaints against judges, prosecutors and lay judges. It could also propose disciplinary sanctions other than removal from office.

Introduction of adversarial judicial reviews of 30-day exclusion orders were also welcomed. Prohibition of trial in absentia went further than in many other jurisdictions the report notes, and this should ensure allocation of scare resources to ongoing cases where defendants were already in detention.  Other improvements were the expansion of the scope of cases where international prosecutors may intervene, and the application of the whole regulation prohibiting trafficking in persons. 
It was also during the past six months that the majority of detention centres had come under the control of the DJA's Penal Management Section. The report commends both its efforts to ensure that juveniles subject to detention receive appropriate educational opportunities and its development of an education measures institution within the Lipjan Detention Facility.
 
...significant gaps remain...
Still missing, on the other hand, was a written instruction declaring the supremacy of human rights laws, quick translation of new laws and systematic consultation of the Joint Advisory Council on Legislative Matters (JAC) on draft regulations. In the context of extra-judicial detention by UNMIK Police and KFOR, the report was also concerned over the continuing absence of any habeas corpus procedures that would enable detainees to challenge the lawfulness of their detention. Also still leaking were procedures that would ensure access to effective defence counsel by detainees during questioning by law enforcement agencies.

Courts were criticised for too little use of alternatives to pre-trial detention for juveniles. And in the case of the mentally ill, there remained a need for a mechanism to ensure the right to appropriate treatment and a fair trial. Indeed, the lack of an appropriate facility for treatment of mentally ill in pre- and post-trial detention was a serious concern.
Structural and procedural problems in the courts continued to hamper their ability to conduct efficient proceedings, particularly after an indictment. Failure to conduct forensic tests, assess defendants' mental capacity or summon witnesses still too often delayed proceedings against suspects and defendants. The absence of a basic forensic capacity had led to failure in effective investigation and prosecution of serious crimes. At the same time policing had frequently been ineffective and inconsistent, particularly in gathering evidence.

The general lack of victim and witness support, assistance services and protection mechanisms continued to be detrimental to court proceedings. They remained a factor in cases of sexual violence (including trafficking-related offences) and cases of intra-familial violence (including child abuse). In this context, the report highlights the key role played by the Department of Health and Social Welfare's Centres for Social Work.  Within the criminal justice system, they were the primary institution responsible for juveniles who came into conflict with the law and for people subject to abuse and domestic violence. Without their functioning, the police and courts had not been able to handle juvenile criminal cases appropriately, nor those involving familial violence.

Finally there remained continuing problems in criminal proceedings. The report acknowledges the difficulties in starting a criminal justice system from scratch two years ago. The disenfranchisement of a significant number of the judiciary over the previous ten-year period prevented nearly all current judges and public prosecutors from using their legal skills and continuing their education. On top of that, until UNMIK arrived the judiciary had no exposure to international human rights laws (which were disregarded in the former Yugoslavian legal framework), nor to other modern European laws and procedures. Thus judges continued to apply provisions of the FRY Criminal Procedure Code (CPC) that were in breach of human rights laws.

The fact remained, however, that judicial fact-finding was inadequate-with inadequate questioning of witnesses, admission of irrelevant and inadmissible evidence, and through inaccuracy of investigation and trial records. Similarly, defence counsel continued to play a passive role when representing their clients.
Such concerns had to be addressed through mandatory training that focussed on development of essential legal skills, the OSCE report concludes.

... but remedies on the way
The significance of the OSCE legal system monitoring reports is that they are an agent of change. Following publication of the first review last October, OSCE and DJA set up a working group to propose action on the recommendations.
As consequence, a many of the issues raised in the second report are already being addressed (see table).

Note for Editors
For a selection of photographs, please contact Mr. Ky Chung at 038 504-604 ext. 5467

Contact: P. Ellwood
(038) 504 604 Ext. 5471
E-mail ellwood@un.org