Ombudsman’s
report on HR situation in Kosovo
Hello and welcome to UNMIK ON AIR with Martin Redi.
The Ombudsperson Institution in Kosovo’s latest report on
the human rights situation takes UNMIK to task on several issues.
Amongst others - that Kosovars do not have the access to
European and international legal institutions that other citizens of Europe
have, that UNMIK has not sufficiently devolved powers to local institutions,
that Kosovo’s judicial system is weak and understaffed, that because Kosovo’s
executive and legislative are essentially part of UNMIK, the principle that the
executive branch of government should not be above the rule of law is
compromised.
All these factors, concludes Ombudsman Marek Novitski, mean
that Kosovar citizens are being short-changed in terms of respect of human
rights, and that UNMIK itself is reflecting its indifference to the rule of law
by which the rest of Europe is bound.
Strong charges to make against an institution now in its
fourth year of existence, but Novitski is adamant - Kosovo, he says is a human
rights black hole.
Marek Novitski: Black hole in the sense Kosovo
is not part of any international system of protection of human rights, people
from Kosovo cannot use any international mechanism of hr protection, people
from Kosovo cannot lodge complaints with the European Court of Human Rights for
example Kosovo is not covered by any reporting mechanism based on different
human rights mechanism; in this sense it is a black hole.
This is not just an abstract concern, he says when asked
whether such charges are not in fact abstract. There are some 2000 cases from
his home country, Poland, currently pending at the European Court and that many
cases raised with the Ombudsman here in Kosovo would end up in a human rights
court anywhere else in Europe.
The Ombudsperson report makes sweeping generalizations and
doesn’t take into consideration the progress made in various sectors, rejoins
Alexander Borg Olivier, head of UNMIK’s legal affairs department.
Alexander Borg Olivier: While it
is true that Kosovo because of its political status the habitual residents do
not have access to int. for a but at the same time, it has to be recognized
that Kosovo is being governed by an interim administration that attaches huge
importance to respect for human rights one of the key principles is to ensure
that all legislation meets human rights standards so every action taken in
Kosovo is taken very much with this in mind so I’m quite satisfied that with all
the international presence and all the int.
attention we have in Kosovo, respect for human rights is certainly not in the
background at all.
Every piece of legislation, says Borg Olivier, is scrutinized by the newly constituted inter pillar working group on human rights. Several other organizations also monitor the human rights situation in Kosovo, and Borg Olivier clearly does not share Novitski’s worry that Kosovars are being deprived of basic rights.
Extra judicial detentions are another area of concern for
the Ombudsman, who nonetheless adds that there are no such cases at the present
moment and that the situation has improved considerably. Such detentions are
few and far between, stresses UNMIK”s Borg-Olivier.
Alexander Borg Olivier: there were instances in
the past where extra judicial detentions were necessary because of particular
circumstances, at times when the judicial structure and legislation in place
was not sufficient to permit another course of action, but I believe that there
has not been any exercise of extra judicial detention by UNMIK since December
of 2001; as to detentions by KFOR, these would be for KFOR to answer for KFOR
has its own separate mandate of course if there is evidence that such
individuals have committed any criminal act, then those individuals should be
passed on to UNMIK.
According to Novitski, at one point there were up to 70 people detained in the US controlled Camp Bondsteel, but he admits that this is a thing of the past. But he is concerned about the lack of clarity in the way laws are published in Kosovo and hence the abuses that can occur. It’s not just a question of how many copies are published or whether they are available on the Internet, says Novitski. Under European standards, a law that is not properly published, the law is not a law.
Marek Novitski: This is a question of access
very important is to follow proper procedure concerning official publications,
it has many legal consequences, and if in this respect you do not follow the
proper procedure there is a risk of arbitrary application of laws, different abuses
Not so, replies Alexander Borg Olivier. All laws published
through his office get passed only after extensive consultation and this, he
says, has actually increased since the constitutional framework was
promulgated.
Another complaint from the Ombudsman, one that figured in
previous reports as well is what he calls lack of communication with UNMIK.
Cooperation is not always optimal, he says, in terms of access to information
and responses to concerns raised.
Marek Novitski: We need, and this is also the
legal obligation of all institutions to cooperate by providing information, by
creating conditions for free inspection of files, access to documents, many
time we are waiting a very long time for answers when we speak about cases
concerning the police, there is a problem with access to files.
The question of the impunity and lack of accountability of international personnel is another issue of concern for Marek Novitski. But insists Alexander Borg Olivier, all UN personnel are subject to the rules of conduct that are imposed on them and are fully accountable. In certain cases immunity can also be lifted
Alexander Borg Olivier: While it is true that
there are certain functional immunities and privileges that apply to work of
internationals in Kosovo, this does not in anyway shield the persons concerned
from any wrongdoing with which they may be associated. So yes, there are
immunities and these immunities are necessary for the proper functioning of the
mission, this immunity is not intended nor does it ever shield any criminality
or wrongdoing. As far as police are concerned, again they are subject to
various rules and code of conduct when necessary immunities are lifted, when
necessary, people are removed and repatriated from this mission.
The Ombudsman does however note progress in the freedom of movement and security for non-Albanians in Kosovo. Much more needs to be done to bring them on par with the others, but then much of this depends on the people and institutions of Kosovo, and not the international authorities. As for UNMIK, it has heard Marek Novitski’s concerns. Perhaps his next report will reflect the changing reality.