C Explanatory
memorandum by Mr von Sydow, rapporteur
1 Introduction
1. I have taken on the task of rapporteur on the situation
in Kosovo being fully aware of the challenges involved. The issue
of the status of Kosovo is deeply divisive and I will steer clear
from trying to promote consensus over it. On the contrary, although
bound to take into account the unilateral declaration of independence
by the Kosovo Assembly and its consequences on the ground, I will
adopt a status-neutral approach. I am convinced that there is no
scope for an Assembly rapporteur to try to address the status issue at
the present moment and in the present circumstances:
- from a legal point of view,
the question of the compliance of the declaration of independence
with international law is being examined by the International Court
of Justice, following a request for an advisory opinion made by
the UN General Assembly;Note
- from a political point of view, at the time of writing,
Kosovo has been recognised as an independent and sovereign state
by 69 countries, including 33 Council of Europe member states.
2. My ambition is to promote consensus on a different aspect
of the Kosovo question: that people in Kosovo should enjoy good
governance, democracy, rule of law and the same legal and human
rights standards as other people in Europe, irrespective of the
status of Kosovo, of the ethnic community to which they belong,
or whether they live north or south of the Ibar River. To use a
vocabulary often associated with Kosovo, I will not be concerned
with status but with standards. I will try to:
- analyse the situation on the
ground as regards governance, democracy, human rights and the rule
of law;
- suggest what should be done for the standards to be fully
achieved;
- recommend how the Council of Europe could contribute to
achieving them.
3. This report is based, amongst other things, on a number of
formal and less formal discussions with actors having first-hand
knowledge of the situation in Kosovo, including the Council of Europe
Commissioner for Human Rights, Mr Hammarberg, who has devoted great
attention to specific human rights issues; an exchange of views
organised by the Political Affairs Committee in Strasbourg;
Note and a number of fact-finding visits,
in particular to:
- Pristina,
Gijlan, Gracanica and Mitrovica (2-5 February 2009);
- Belgrade (8-9 June 2009);
- Brussels (25-26 November 2009);
- various locations in Kosovo (21-26 February 2010).
2 A complex
institutional layout
4. At the moment, Kosovo presents a complex institutional
layout, including local and international actors. Some of these
institutions have been set up as a result of the declared independence
of Kosovo; others are status-neutral. Some of them have executive
functions; others have mainly a consultative function but they can exercise
executive functions by default if other institutions fail to do
so. The complexity of this institutional framework requires a great
effort of co-ordination and vigilance in order to avoid gaps or
overlapping which would affect security, governance and the rule
of law.
5. Since declaring independence, the Kosovo institutions consider
themselves as the sovereign authorities of Kosovo and have made
steps to affirm Kosovo’s statehood. Institutions such as the president,
ministers and the assembly continue to exist as prior to the unilateral
declaration of independence but refuse the label of “Provisional
Institutions of Self-Government” (PISG). In the government, new
ministries of European Integration, Foreign Affairs and Defence
have been set up.
6. Upon declaring independence, Kosovo expressly invited an international
civilian presence, as it was envisaged in the Comprehensive Proposal
for the Kosovo Status Settlement (thereafter the Ahtisaari Proposal).
Note
7. In response to this request, the International Steering Group
for Kosovo (ISG) – formed by 25 states having recognised the independence
of Kosovo and supporting the Ahtisaari Proposal – appointed Pieter Feith,
a Dutch diplomat and former official of the Secretariat of the Council
of the European Union, as International Civilian Representative
(ICR), with the task of monitoring and ensuring implementation of
the Ahtisaari Proposal by the Kosovo Government.
8. In addition, Pieter Feith holds a simultaneous mandate as
the European Union Special Representative (EUSR) in Kosovo,
Note under which he
should ensure the overall co-ordination of the European Union presence in
Kosovo, the consistency and coherence of the Union action towards
the public, provide local political guidance to the Head of the
European Union Rule of Law Mission in Kosovo (EULEX) and contribute
to the development and consolidation of respect for human rights
and fundamental freedoms in Kosovo.
9. The establishment of the figure of the EUSR for Kosovo was
inscribed in a trend that developed in parallel with the negotiations
over the final status of Kosovo, namely the downsizing of the UN
presence in Kosovo and the corresponding increase in the political
and operational involvement of the European Union, with a large
field mission that should have been deployed after the successful
conclusion of the negotiations.
10. The declaration of independence, outside a negotiated solution,
posed important political challenges to European Union involvement
on the ground, as not all EU member states were – and are – prepared
to recognise the independence of Kosovo.
Note EU member states,
however, overcame possible political difficulties in a pragmatic
spirit, ensuring unanimous support for the deployment of a European
Union operation despite their different views over status, as epitomised
by the formula “diversity on status but unity on engagement”.
Note
11. In line with the United Nations Security Council’s presidential
statement of 26 November 2008,
Note the Government
of Serbia and the majority of Kosovo Serbs accepted the deployment
of EULEX on condition that it would fully respect
Resolution 1244 (1999) and that it would operate under the overall authority
of the United Nations and within its status-neutral framework. Having
achieved operational capability in April 2008, EULEX therefore could
deploy Kosovo-wide starting from December of the same year. EULEX
is the largest civilian mission ever launched by the European Union,
with a final staff target of 3 200 people. Its core aim is to assist and
support the Kosovo authorities in the rule of law area, specifically
in the police, judiciary and customs areas. It is a technical mission
which monitors, mentors and advises whilst retaining a number of
executive powers in some specific areas.
12. In October 2009, the Italian Ambassador to Kosovo, Michael
Giffoni, was appointed as European Union Representative for the
North of Kosovo, with a view to increasing European Union activities
in the area. In March 2010, the European Union also opened an office
in North Mitrovica. Ambassador Dimitris Moschopoulos is the Union
facilitator for the protection of religious and cultural heritage.
13. The changed circumstances on the ground and the deployment
of EULEX in Kosovo have led to the gradual adjustment of the profile
and size of the United Nations Interim Administration Mission in
Kosovo (UNMIK), which concluded its reconfiguration and reached
the authorised strength of 510 staff as of 1 July 2009.
Note Its functions
have also changed: rather than an authority with executive powers,
UNMIK mainly acts as a facilitator in situations where the underlying
disagreement over the status of Kosovo has inhibited practical progress,
affecting the everyday life of people in Kosovo. UNMIK maintains
a sizeable presence in the North of Kosovo, where it acts as a facilitator
also between the Serbian community and EULEX, when necessary. Enjoying
the trust of all communities, UNMIK is in a unique position to act
as a facilitator of dialogue.
14. The changed situation on the ground has also had consequences
on the size and tasks of KFOR, a NATO peace-enforcement operation
operated under Chapter VII of the UN Charter, on the basis of United Nations
Security Council (UNSC)
Resolution
1244. Following the declaration of independence, the Alliance reaffirmed
that KFOR should remain in Kosovo unless the UNSC decides otherwise.
Its troops, however, have been reduced to approximately 10 000.
Amongst its new tasks is assisting in the dismantling of the Kosovo Protection
Corps (KPC) and in the establishment of the Kosovo Security Force
(KSF), as well as the civilian structure to oversee the KSF. These
tasks are implemented in close co-ordination and consultation with
the relevant local and international authorities. KFOR plans the
further downsizing of its mission in 2010.
15. To complete the overview of the main international organisations
present in Kosovo,
Note I
would like to mention the OSCE which, without having executive powers,
holds a mandate to take the lead role in matters relating to institution
and democracy-building and human rights and rule of law, in the
framework of UNSC
Resolution
1244.
Note To
do so, the OSCE mission applies a proactive monitoring policy that
includes monitoring, analysing, reporting and recommending remedial
action for observed shortcomings. When necessary, the mission provides
training and advice to the institutions. With a ceiling of 224 international
and 633 local staff, the OSCE Mission in Kosovo is currently the
largest OSCE field presence. To fulfil its mandate and carry out its
activities, it has a network of five regional centres and 33 municipal
teams that cover Kosovo's 33 municipalities. The OSCE budget allocated
to the mission in Kosovo for 2010 amounts to €23 546 600.
16. Also after the unilateral declaration of independence, the
Serbian authorities continue to have an impact on the lives of the
Serbian community in Kosovo. This impact is particularly strong
in the three municipalities of Leposavić, Zvečan and Zubin Potok
and also in North Mitrovica – an area where Serbs are the majority
of the population and which has territorial continuity with Serbia
– whereas it is more limited in the Serbian enclaves south of the
Ibar River.
17. The voice of Belgrade is heard through the Serbian television
and other media in the Serbian language; through the Orthodox Church;
through politicians, some of whom have been elected in the Serbian
local elections organised in the territory of Kosovo,
Note while
others hold a parliamentary mandate in Belgrade, gained by participating
in the Serbian parliamentary elections;
Note and
through the Ministry of Kosovo and Metohija, in the Serbian Government,
led by Goran Bogdanović with Oliver Ivanović as state secretary.
18. Throughout Kosovo, Serbian structures receiving funding from
Belgrade (so-called parallel structures) provide basic services
to the Serbian community in key areas for everyday life such as
administration, justice, health and education. Also at the political
level, local authorities elected through Kosovo elections operate aside
local authorities elected through Serbian elections. Recently, in
a new development, the Judicial Council of Serbia has announced
its decision to appoint judges and prosecutors to Kosovo municipalities.
In the North of Kosovo, where the majority of the population is
of Serbian ethnicity, Serbian structures are the main reference
for ordinary people.
3 Political stability,
governance and democracy
19. In the unilateral declaration of independence, the
Kosovo Assembly declared Kosovo to be a democratic republic and
vowed to realise the full democratic potential of its society. Since
then, a constitution has entered into force, a huge legislative
effort has been made, and a number of reforms in the fields of the
administration, the judiciary and other key sectors have been undertaken.
However, much remains to be done to improve political stability
and governance and to bring Kosovo’s democracy closer to European
standards.
20. The last elections to the Kosovo Assembly were held in 2007,
before the declaration of independence. They were organised by UNMIK,
with the Council of Europe and the OSCE playing a leading role in
the observation process.
Note Following
the vote, a coalition government was formed by the two majority
parties, the PDK led by Hashim Thaci (37 seats) and the LDK of President
Fatmir Sejdiu (25), with AKR, LDD and AAK and other smaller parties
in the opposition.
Note
21. In November 2009, for the first time the Kosovo authorities
were entirely in charge of the organisation of local elections.
Neither the Council of Europe nor the OSCE observed them or were
involved in the organisation. However, the Kosovo authorities invited
the European Network of Election Monitoring Organizations (ENEMO),
a group of 18 leading civic organisations from eastern and central
Europe and central Asia with a consolidated experience in election
monitoring, to conduct long and short-term observation. ENEMO found
that elections took place in a calm and orderly atmosphere and largely
in compliance with European standards, despite some breaches of
procedure.
Note Politically, the electoral results
gave a big shake to the government coalition, with rumours circulating
that the PDK would form a new alliance with AKR and LDD, excluding
LDK. This reshuffling has so far been averted but tensions between
the coalition parties remain.
22. The most striking feature of recent elections in Kosovo is
the low turnout: approximately 30% in 2007 (elections for the Kosovo
Assembly) and 38% in 2009 (local elections).
Note This
is a sign of the electorate’s disaffection with the political system,
which is not only a general problem in Europe but is also due to
Kosovo’s specific reality, with widespread suspicion of the political
class being corrupt and having links with organised crime. An additional
explanation for the low turnout in the 2009 elections was offered
to me by some ordinary people from Kosovo: the current government
was put in place to deliver independence, and it did so; however, those
same politicians are unable to deliver on the most pressing issues
that preoccupy the electorate once the status issue settled: unemployment,
the state of the economy, the provision and quality of basic services and
the fight against corruption.
23. Irrespective of the performance of the current leadership,
Kosovo has a long way to go to consolidate the democratic functioning
of its institutions: political debate in the Assembly is very limited;
legislation and political decisions tend to be negotiated outside
the Assembly and then handed over for endorsement; there is no deep
understanding of the oversight role of the Assembly on government
or of the dynamics between the majority and the opposition in a
democratic system; political parties do not operate according to
democratic rules and reflect the interests of some prominent figures
in society, families or structures linked to the war period; the
media and the judiciary are not free from political interference.
Corruption in politics – including at the highest level – and in
the administration are a major problem, recognised by all the international
actors on the ground.
24. The issue of the participation of communities in the political
system is essential for its democratic functioning and political
legitimacy. Special measures have been introduced in order to ensure
the representation of minority communities in the Kosovo Assembly
and special majorities are required for passing legislation affecting
them. However, in practice, ensuring the participation of the Kosovo
Serb community in the Kosovo political system remains a major challenge.
25. During the votes that have taken place in Kosovo since 1999,
Kosovo Serbs’ participation in the elections to the Kosovo Assembly
has been very low, also in response to calls from Belgrade in favour
of abstention. As a result, the seats set aside for Kosovo Serbs’
representatives in the Assembly (10) have been occupied by politicians
whose representativity is questioned by Belgrade as well as by some
Kosovo Serb political figures. For similar reasons, the authorities
in Belgrade have disputed the legitimacy of those Kosovo Serbs who
have agreed to occupy the position of ministers in the Kosovo Government,
as is traditionally the case for the Ministry for Communities and
Returns.
26. The majority of Kosovo Serbs abstained from voting also in
the 2009 local elections,
Note the first ones after the declaration
of independence: the turnout within this community was lower than
1% in the north. However, the increased participation of Kosovo
Serbs living in enclaves south of the Ibar compared to previous
votes is an important development, which seems to testify to their
growing preparedness to find a
modus
vivendi with the Kosovo institutions and the subsequent
decrease of Belgrade’s influence.
27. Diverging assessments have been given for the overall Kosovo
Serbs’ participation in the 2009 vote: while Belgrade declared that
the poor turnout deprived the electoral results of any legitimacy,
NoteNote the
European Union welcomed the participation of all communities.
Note
28. Although neither enjoying widespread support nor representing
a real threat to political stability, extremist groups are active
in Kosovo. The best known is Vetëvendosje (self-determination),
a group which opposes the international presence and is against
local government reform, in particular the creation of new municipalities
with a Serbian majority. This group has been responsible for incidents
of violence in Kosovo.
4 The rule of law
29. At present, the poor record in the respect for the
rule of law is the main problem in Kosovo. It affects ordinary individuals
in their everyday life, irrespective of the community they belong
to. It also has an impact on governance, the functioning of the
political system and the administration and people’s trust in the institutions
and the private sector. It is a hindrance to economic development,
as foreign and local investors are reluctant to commit resources
in these circumstances.
4.1 Recent developments
30. Since my last visit to Kosovo, important developments
have taken place in this area. In May 2010, following months of
thorough investigations, the EULEX judicial component pressed charges
against the Minister for Transport, Fatmir Limaj, and the Head of
Procurement in the same ministry, Nexhat Krasniqi, on grounds of
money laundering, organised crime, abuse of office and soliciting
bribes. EULEX acting Chief Prosecutor, Johan van Vreeswijk, also
revealed that six other government ministers are under investigation
for corruption.
Note
31. Hopefully, this development proves to a large part of Kosovo’s
public opinion that EULEX is able to tackle exemplary cases and
that the time of impunity is over: the rapid enrichment of some
figures close to or from the Kosovo political leadership is under
everybody’s eyes and, at the time of my last visit to Kosovo, various interlocutors
expressed frustration and criticism at the performance of EULEX,
which they considered to be unable or unwilling to tackle such cases.
32. It is, however, a source of concern that, in an interview
with the public broadcaster, Prime Minister Hashim Thaci, who belongs
to the same party as the Minister for Transport (PDK), questioned
the actions of EULEX and hinted at the existence of a “political
war” between Kosovo and international institutions.
33. I regret this misjudgement over the role of EULEX, which is
a status-neutral technical mission with the purpose of strengthening
the rule of law in Kosovo: it is neither an international tribunal
nor a political body. Despite its mandate and nature, however, EULEX
operates in a highly political environment, its actions have a political
impact, are liable to political manipulation and subject to political
assessment. I was pleased, therefore, to hear that, even before
these prominent cases, EULEX was actively promoting round tables
and other exchanges with the Kosovo civil society, in order to explain
its role and mandate.
34. Another important development, which is telling of the difficulty
to enforce the rule of law in Kosovo, is the trial of Albin Kurti
, the leader of Vetevendosje, who
was arrested for inciting violent behaviour and obstructing the
work of police officers during a demonstration. This trial was postponed
for the 11th time because Mr Kurti was not taken to court despite
an arrest order issued previously by the presiding EULEX judge.
In addition the lawyers appointed
ex
officio did not show up, in violation of their official
duties.
Note
35. During my last visit to Kosovo, I met ordinary people who
considered it a misdirection of purpose that EULEX was after Kurti.
What is more worrying, however, is that police and lawyers themselves
decide not to comply with their duties, with a view to preventing
the course of justice. As stated by EULEX, this behaviour will require
action by the police disciplinary bodies and the Bar Association.
4.2 The fight against
corruption
36. Corruption is so widespread in Kosovo that it could
be defined as endemic; it is so deeply rooted in society that a
considerable effort of awareness-raising should be made to encourage
ordinary people to report cases of corruption. On the other hand,
it is not infrequent that, when cases of corruption are reported,
they are based on rumours or are deliberately calumnious.
37. In an attempt to counter corruption, a Kosovo Anti-corruption
Agency (KAA) has been established, with a threefold mission:
- fighting corruption, by conducting
administrative investigations on potential corruption cases ex officio or by the request of
a party, and forwarding cases to the Public Prosecutor’s Office
of Kosovo for further examination and/or judicial action when there
is sufficient evidence; drafting bills for supplementing the legal
framework in the area and drawing up the action plan against corruption
and ensuring its implementation;
- preventing corruption, by reviewing asset declarations
by high-level Kosovo officials; raising cases of conflict of interest
and registering gifts accepted by officials;
- training the civil service on the relevant legal framework
and organising awareness-raising campaigns.
38. During two years of work (2007 and 2008; the 2009 report is
under preparation), the agency opened 270 files and, finding that
there were sufficient grounds for prosecution, transmitted a hundred
of them to the prosecutor’s office.
39. Despite the adoption of the anti-corruption strategy, the
legislative framework is not complete. In particular, several interlocutors
regretted the lack of resolve of the Kosovo authorities in adopting
a new procurement law as a matter of urgency.
40. Misconduct in procurement activities is a frequent form of
corruption. On several occasions, procurement officers have been
tried. The suspicion, however, remains that procurement officers
are only the weak link in a chain, and that the real responsibility
lies with political figures who never leave a trace.
41. At present, discussions are taking place in the Kosovo Assembly
on the drafting of new procurement legislation. The anti-corruption
agency participates in these discussions and supports three main
ideas:
- to make it possible
to identify who, politically, is responsible for the allocation
of a given tender;
- to conduct more attentive examination of the information
provided by firms when competing for a tender – which has often
proved to be false;
- to introduce a clause on conflict of interest.
42. The anti-corruption agency regularly participates in meetings
with similar structures within the region, in order to exchange
information and best practice. It is supported by the European Commission
through a number of projects aimed at improving the expertise and
the professionalism of its staff.
4.3 The judiciary
43. Any attempt to eradicate corruption is bound to fail
without an efficient and trustworthy judiciary. Unfortunately, in
Kosovo, the judiciary is in poor shape. This is partly due to the
fact that the great majority of judges and prosecutors who are currently
in office completed their studies in the pre-1999 period and are
not up to speed with relevant law. In addition, due to the lack
of career progress during the years of the war and of the UNMIK
administration, the average age of judges in municipal courts (the
first instance of the judiciary) is 55. These elements, together
with low salaries, affect the motivation of judges, their flexibility
to adapt to new legislation and to distance themselves from certain
inefficient procedures or practices.
44. These problems are aggravated by lack of
de iure independence, due to the
appointment and promotion system,
Note and lack of de facto
independence, due to the inadequacy of measures to protect judges
and prosecutors. Corruption is an outstanding concern, with 80%
of all corruption cases involving members of the judiciary, according
to some interlocutors.
45. Efficiency in dealing with the current huge backlog of cases
is negatively affected by technical problems, such as the poor state
of the filing and archiving system, and by shortage of staff, due
to the fact that only one third of serving judges have passed the
ethics vetting procedure. The slow pace at which Kosovo judges tackle their
workload has led to many people spending as long as two years in
pre-trial detention, after which cases are normally transferred
to EULEX judges to be dealt with as a matter of urgency.
4.4 EULEX judicial
component
46. The deployment of EULEX has not yet had a decisive
impact on the general state of affairs of the judiciary. In fact,
relations between the EULEX judicial component and the Kosovo judiciary
are not always straightforward. In a way, Kosovo judges resent the
presence of EULEX judges and do not find it easy to adapt to their
working methods; as a result, communication is not easy and is further
complicated by the need of interpretation.
47. At the same time, EULEX faces some challenges of its own:
- the mandate of monitoring, mentoring
and advising is not easy to implement considering the ratio between the EULEX judicial
component and Kosovo judiciary: in Prizren, for instance, the proportion between
EULEX prosecutors and Kosovo prosecutors is 1 to 17. It is therefore
not evident for EULEX to have a complete overview of the cases being
dealt with;
- EULEX’s monitoring, mentoring and advising role is not
so visible in the eyes of the public opinion as its executive functions.
Indeed EULEX judges have primary responsibility for dealing with
urgent cases or cases for which it is reasonable to believe that
Kosovo judges would be subjected to excessive outside pressure,
such as corruption cases involving high-profile figures and war
crimes;
- the work of EULEX judges and prosecutors is slowed down
by the need for interpretation and translation, not only to read
the files and hear cases but also to communicate with Kosovo colleagues;
- to monitor, mentor and advise, EULEX staff must be experienced.
However, according to the current recruitment procedure, the staff
are given very short notice before being deployed, with the result
that many of those with a consolidated experience do not apply or
do not accept the job. It was mentioned to me that it would be better
if EULEX could set up a roster of judges and prosecutors from which
to draw when needed.
48. Since their deployment, EULEX judges and prosecutors have
worked hard: they have reviewed and assessed the war crime files
received from UNMIK; they have identified a number of organised
crime and war crime cases for priority action and they have dealt
with several inter-ethnic crime cases and property cases.
49. At the time of my first visit to Kosovo, in 2009, EULEX judges
and prosecutors in North Mitrovica were not able to work due to
the poor state of the filing system but above all due to the refusal
of Kosovo Albanian and Kosovo Serbs to work together at all levels
(from judges to cleaning personnel). One year later, I was pleased
to see that this situation has changed: EULEX judges and prosecutors
in the North Mitrovica district court have completed a number of
trials, while an inventory of files has been undertaken, with the
active involvement of Kosovo Albanian and Kosovo Serb professionals.
50. Something which has not changed, however, is the lack of clarity
as to the system of sources of law: in their daily work, EULEX judges
have to deal with a complex and unclear legal framework where different sources
of law, such as UNMIK regulations, the Kosovo Constitution, legislation
passed by the Kosovo Assembly and pre-1999 Serbian legislation coexist
and overlap without a clear indication of which one should prevail.
4.5 Police
51. According to various interlocutors I met in Kosovo,
including EULEX itself, the Kosovo Police (KPS) is properly trained,
its staff sufficiently skilled and has appropriate budgetary resources
and equipment. There is, however, a concern about the quality of
its leadership and its capacity for strategic direction, which are
critical features to tackle some of the main challenges to the rule
of law in Kosovo, such as organised crime and corruption.
52. Despite the low remuneration of its staff, KPS is found to
be relatively free from corrupt behaviour. However, its accountability
could be further improved, in particular with regard to the ability
publicly to explain its performance and address community expectations
at local level in the context of a multi-ethnic society. In order
to do so, KPS should improve its system for collecting data on the
ethnicity of victims of crime and for categorising crimes as “likely
to be ethnically motivated”.
53. As regards the multi-ethnic character of KPS, out of 325 Kosovo
Serb police staff who did not report for duty after the unilateral
declaration of independence, 318 have returned to work and have
been reintegrated, under EULEX supervision. A visibly mixed police
force and joint patrolling are essential elements for the police to
enjoy the trust of communities, especially in minority areas. More
efforts should be done, however, to encourage the recruitment of
Kosovo Serbs into the KPS in the north of Kosovo.
5 The human rights
framework
5.1 Law and policy
54. According to the Kosovo Constitution,
Note a
number of international instruments are directly applicable in Kosovo
including, amongst others, the European Convention on Human Rights,
the Framework Convention for the Protection of National Minorities,
the International Covenant on Civil and Political Rights, the Convention on
the Elimination of all Forms of Discrimination and the UN Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment.
55. In the current situation, where the self-declared statehood
of Kosovo is contested and it is an open question whether Kosovo
could become a signatory to any of these instruments in the foreseeable
future, the incorporation of key international human rights instruments
into domestic law is a fundamental precondition to ensure that people
in Kosovo can enjoy a level of human rights protection which is
equivalent to that enjoyed by other Europeans.
56. Although being a precondition, however, this incorporation
is not per se a guarantee of effective human rights protection because:
- the general knowledge of these
instruments amongst the legal profession and the judiciary is limited;
- people are not aware of these instruments and of the rights
stemming from them.
57. Furthermore, it should be noted that even if, under the constitution,
the European Convention on Human Rights is applicable in Kosovo,
there is no legal basis for the exercise of jurisdiction by the
European Court of Human Rights – given that Kosovo is not a member
of the Council of Europe and therefore cannot be a signatory to
the Convention. This implies that Kosovo courts, at all levels,
will be dealing with cases raising issues under the Convention.
58. I believe that the presence of three international judges
in the Constitutional Court is an important element which will reinforce
the independence of the highest judicial authority but also its
capacity to ensure consistency with European and international human
rights instruments.
Note
59. At policy level, there is an awareness in the Kosovo institutions
that further measures must be taken in order to pass from theory
to practice: in December 2008, the government issued a Strategy
and Action Plan on Human Rights 2009-2011, which sets out the goal
to set up a number of instruments to this end, such as: periodic
review of the implementation of legislation; regular reporting and
monitoring; increased institutional capacity and appropriate resources;
better training and strengthened co-operation between government institutions
and civil society. The evaluation given to this action plan is generally
positive.
Note
60. In the light of what has been said above about the state of
the judiciary in Kosovo, I see the scope for an enhanced role for
the Council of Europe in providing specialised training to judges,
prosecutors, and members of the legal profession on the European
Convention on Human Rights and other Council of Europe instruments.
In addition, the Council of Europe could play a role in the organisation
of human rights awareness campaigns or other activities directed
to civil society or the general public.
5.2 The ombudsperson
61. The ombudsperson is an independent institution which
addresses alleged human rights violations or abuse of authority
by central or local institutions in Kosovo. The institution was
established in 2000 with a view to enhancing the range of mechanisms
for human rights protection. Initially, it was an international
body but in 2005 UNMIK took steps to transform it into a local body.
62. It is regrettable that, only in June 2009, after a number
of failed attempts, the Kosovo Assembly managed to elect an ombudsperson,
Sami Kurteshi.
63. During my first visit to Pristina, I had a long and interesting
conversation with the then acting ombudsperson, Hilmi Jashari, who
held the position ad interim from 2005 to 2009 and who gave me an
insight into the important work accomplished by the institution.
Its success and the credibility which it enjoys amongst all the
communities in Kosovo is due both to its multi-ethnic character
and to the expertise of its staff, who are posted in different areas
of Kosovo.
Note
64. As confirmed by the current post-holder, Mr Kurteshi, however,
the general sensitivity for human rights issues amongst politicians
and institutions is rather low. The ombudsperson’s reports are never
debated in the Kosovo Assembly, despite the fact that, due to the
public’s lack of trust in the judiciary, the ombudsperson’s office
takes up an increasingly sizeable caseload.
5.3 Human rights accountability
of international institutions
65. Faced with the immunity of UNMIK and KFOR staff from
any legal process in Kosovo, in 2004 the Venice Commission recommended
the establishment of an adequate and consistent mechanism for the
examination of alleged human rights breaches for which they might
be responsible.
Note Following this
advice, in 2006, UNMIK set up the Human Rights Advisory Panel.
66. The Human Rights Advisory Panel examines complaints of alleged
human rights violations committed by or attributable to the United
Nations Interim Administration Mission in Kosovo (UNMIK) and makes recommendations
to the Special Representative of the Secretary-General (SRSG) in
Kosovo when appropriate. The panel is composed of three internationals
who sit in Pristina each month to render determinations on complaints
against UNMIK. If a complaint is admissible, the panel will then
render an opinion on whether UNMIK is responsible for a violation
of one of the various human rights instruments in force in Kosovo.
If the panel determines that a violation has occurred, the opinion
may include recommendations to the SRSG. The SRSG must then publicly
state how he/she will react to those recommendations.
67. This mechanism has been criticised by the Assembly in the
past, because its recommendations are not binding.
Note On the other hand, it should be underlined
that this is the only independent mechanism dealing specifically
with human rights violations allegedly committed by or attributable
to a United Nations field mission. In addition, in a new interesting
development, a recent decision rendered by the panel recommends
UNMIK to award financial compensation to the complainants for non-pecuniary
damage.
Note
68. Also argued by Commissioner Hammarberg in his report, the
changed situation on the ground with the deployment of EULEX makes
it appropriate to evaluate whether this new international presence
has effective accountability mechanisms in place. For this reason,
the Political Affairs Committee endorsed my proposal to ask the
Venice Commission to produce a follow-up opinion on mechanisms to
review the compatibility of acts of UNMIK and EULEX with human rights
standards in Kosovo. I look forward to discussing the Venice Commission’s
views and proposals, which should be finalised by September this
year.
6 The situation of
non-Albanian communities
69. According to its Statistical Office, 92% of the population
in Kosovo is made up of ethnic Albanians, 5.3% Serbs and 2.7% other
ethnic groups, including Roma, Ashkali, Egyptians, Turks and Bosniacs.
Note
70. This data, however, is not completely reliable as the last
census dates back to 1991.
Note Preparations
for a new census, with the involvement also of the Council of Europe,
have been under way since 2005 but are complicated by technical
and political issues, such as how to include Kosovo’s displaced
population. At the moment, however, it is planned to be held in
2011.
71. Organisations on the ground report the overall security situation
in Kosovo to be calm but fragile in the north.
Note In the current
climate in which communities live separately and do not trust each
other, futile incidents or ordinary crimes which do not have any
ethnic motive can flare up and degenerate in inter-ethnic violence.
72. One year after my last visit to Kosovo, I was struck by the
change I saw in the Serbian community, with a deepening gap between
Kosovo Serbs living in the north and those living south of the Ibar.
73. More and more Kosovo Serbs in the south are prepared to find
a modus vivendi with the Kosovo authorities,
provided that they are afforded the widest possible autonomy and
the highest standards of minority rights, including the right to
receive education and deal with the administration in their own
language. This trend is also testified by the unexpected increased
participation of Kosovo Serbs in the south during the November local
elections.
74. Serbs living in enclaves in the south told me that they do
not have security concerns and can exercise freedom of movement.
However, they continue to face serious problems: some of them are
common to all communities, such as high unemployment and untrustworthy
judiciary; others are specific to them, such as lack of recognition
of documents and real or perceived discrimination. In any case,
even if there is no inter-ethnic violence, communities continue
to live separately and their level of interaction is negligible.
75. The situation in the north, on the other hand, is tense:
- Kosovo Serbs in the north continue
to believe that the status of Kosovo is an open question;
- they are nervous about the Strategy for the North, launched
by the Kosovo authorities in consultation with the International
Civilian Office, which they consider as an attempt by Pristina to
affirm its illegal authority over the north, de facto;
- in addition, political differences between majority and
opposition forces in Belgrade (where the government is a coalition
between DS and the socialists) and the north of Kosovo (where DSS
and the radicals are the main parties) have local repercussions:
- in a number of key municipalities in the north, new mayors
from the DS Party have been put in place following exceptional procedures,
and replaced DSS mayors;
- the DSS representatives whom I met in North Mitrovica
complained that their voice is not sufficiently heard in Belgrade,
particularly in the Ministry for Kosovo and Metohija, and fear that
the current government might soften its position on Kosovo as a
token to progress towards European Union integration.
76. I was also struck by the lack of information which affects
the Serbian community, especially in the north. I am convinced that
the exposure of the Serbian community to a variety of media, offering
different points of view on the situation in Kosovo, could play
a positive role in defusing tensions and helping people make better-informed
decisions. In this regard, I strongly encourage the project of the
Kosovo Association of Journalists to promote the exchange of stories
and reports between journalists belonging to different communities.
77. South of the Ibar, a new pragmatic attitude on the part of
Belgrade towards Kosovo Serbs living in the enclaves is to be noticed:
for instance, in the field of energy supply, unlike during previous
years, the Serbian authorities advised Kosovo Serbs who had been
disconnected from the Kosovo Energy Corporation to sign contracts
with it, despite its name. This has had an immediate improvement
on their quality of life.
78. However, a number of difficulties remain: for instance, Kosovo
Serbs continue to face problems related to the issuance of Kosovo
identity cards by the Kosovo authorities, who do not recognise birth
certificates issued by the Serbian “parallel” authorities in Kosovo
after June 1999. A similar problem exists for driving permits. On
the other hand, official school diplomas stamped with “Republic
of Kosovo” are not recognised either by the State University in
Mitrovica or by universities in Serbia proper.
Note
79. It is to be hoped that the reform of local self-government,
which the Kosovo authorities have undertaken following Ahtisaari’s
proposals, will eventually lead to better living conditions and
governance, also in non-Albanian community areas. This reform redesigns
the borders of some municipalities and increases their competences
and budgetary powers. At the moment, municipal preparatory teams
have been established in Gracanica, Klokot, Northern Mitrovica,
Partes and Ranilug.
80. Finally, I would also like to recall the particular situation
of Roma, Ashkali and Egyptian communities (RAE) who, throughout
Kosovo, face marginalisation, discrimination in areas of education,
social protection, health care and housing and are sometimes stateless.
Note As the Commissioner for
Human Rights, Thomas Hammarberg, has highlighted in his report,
the situation of the three camps in northern Kosovo where RAE IDPs
are accommodated is a matter of serious concern: in all of them
living conditions are difficult; in addition, the camps of Cesmin
Lug, hosting 163 people, and Osterode, hosting 376 people, are contaminated
by lead.
Note Despite the clear commitment
of the Kosovo Government and other stakeholders to relocate them,
RAE IDPs have lived in the lead-contaminated camps for ten years.
The Kosovo authorities and the international community should remedy
this situation as a matter of urgency, with a view to finding a
permanent solution and providing medical treatment to people whose
health has been affected by lead-poisoning.
81. During my last visit to Kosovo, I had the opportunity to visit
the village of Mamusa, in the south of Kosovo, where the majority
of the population belongs to the Kosovo Turkish community. I was
struck by the public works that the local authorities had undertaken
in this village, thanks to the funding made available by Pristina
in the context of the decentralisation process. The Turkish Government
had also been able to fund the construction of a school and a mosque,
channelling the relevant resources via Pristina. I was told that
inter-ethnic relations were good and that the Turkish minority did
not face any particular difficulty, except for those faced by everybody
in Kosovo, namely unemployment and an inefficient justice system.
82. Any discussion about the situation of communities in Kosovo
cannot but mention the importance of establishing trust between
people from different communities. It seems to me that some issues
are particularly important in this process: the protection of religious
and cultural heritage; missing persons; co-operation with justice
in order to uncover mass graves and identify war criminals; public
condemnation of inter-ethnic crimes and a political commitment not
to allow them to remain unpunished; and public statements by high-profile politicians
to foster dialogue and reconciliation.
7 People in displacement
83. During my visit to Belgrade, in June 2009, I had
the opportunity to visit the collective centre “ORA-Sartid” for
displaced persons, in Smederevo. This centre accommodates 539 persons,
of whom 474 are internally displaced persons (IDPs, 144 families)
and 63 are refugees (25 families). The great majority of them come
from Kosovo; some of them have been displaced twice (from Kosovo
and from previous conflicts taking place in the territory of the
former Yugoslavia). Accommodation is provided in 34 prefabricated
barracks with 230 rooms. Central heating, electricity and water
are provided free of charge, as well as one warm meal per day. Residents have
access to local schools and health services.
84. In addition to meeting the director, the local authorities
and staff of the United Nations High Commissioner for Refugees (UNHCR),
I could speak freely with a number of families who had lived in
the centre since 1999. Only 15 out of the entire population of the
centre had a regular job. Some of them had been to Kosovo recently
with the go-and-see visits organised by UNHCR. None of the people
I met wished to return to Kosovo: the main reasons were the feeling
of being unsafe, the lack of prospects in terms of jobs and education,
the fear of going back and finding a completely changed context
– discrimination, a numerically small or inexistent Serbian community
and an Albanian administration. I met a Kosovo Albanian woman who had
been married to a Kosovo Serb: despite being a widow, she could
not imagine her life in the new Kosovo.
85. According to the estimates, approximately 235 000 Serbs, Roma
and members of other minority communities fled Kosovo at the end
of July 1999, the majority of whom found refuge in Serbia while
others reached other countries in the region or outside. In 2004,
another 4 200 persons (Serbs, Roma and Ashkali) were displaced.
86. At the end of 2009, internally displaced persons within Kosovo
amounted to 19 670 persons, comprising 10 342 Serbs, 7 550 Albanians,
695 Ashkalis, 676 Roma and 301 Egyptians.
Note The vast majority are concentrated
in the area of Mitrovica, followed by Pristina, Gracanica and Strpce.
According to the Government of Serbia, 205 211 inhabitants from
Kosovo are currently displaced in Serbia proper and 16 197 are in Montenegro.
87. According to UNHCR,
Note during
the period from 2000 to 2009, 19 827 persons returned to Kosovo,
which comprised 42.61% Serbs, 26.08% Ashkali and Egyptians, 13.92%
Roma and 4.14% Albanians. Over this period, 12 300 people returned
from Serbia proper; 2 858 from Montenegro; 797 from “the former
Yugoslav Republic of Macedonia”; 243 from Bosnia and Herzegovina;
2 856 from other parts of Kosovo and 773 from countries outside
the region. After a decrease of more than 62% in the return trend
in 2008, possibly linked to the unilateral declaration of independence,
the return trend in 2009 shows an increase of 70% compared to the same
period in the previous year.
88. According to UNHCR, as at the end of 2009, 1 366 families
(5 000 individuals) have expressed an interest in returning to Kosovo.
Within the Kosovo Government, the Ministry of Communities and Return
is dealing with the applications even if the reintegration of returnees
continues to pose a daunting challenge due to the lack of employment
opportunities, the fragile economic situation and difficult access
to basic services. Amongst the ministry’s priorities are the construction
and reconstruction of houses and investment in community development
projects with a view to increasing the sustainability of returns.
89. As Pristina and Belgrade do not have any official relations,
the UNHCR offices in both cities resulted in an increase of 70%,
compared to the previous year, in the number of voluntary returns
to Kosovo.
90. UNHCR has been very active in promoting visits to enable displaced
persons to obtain first-hand information on the situation on the
ground: 76 go-and-see visits and 32 go-and-inform visits have been organised
with UNHCR participation in 2009, benefiting 957 IDPs/refugees from
Kosovo displaced in Kosovo, in Serbia proper, Montenegro and “the
former Yugoslav Republic of Macedonia”.
Note
91. The fact that the great majority of European Union member
states has recognised the independence of Kosovo has raised concerns
of a possible increase in the number of forced returns, not only
of people from Kosovo who did not have a legal title to reside abroad,
but also people who previously enjoyed some form of international
protection.
92. The Kosovo Government approved a returnee reintegration strategy
in 2007. It sets out the activities necessary to reintegrate people
forcibly returned to Kosovo. It covers their initial reception at
Pristina airport, their transport to their place of origin and reintegration
in Kosovo. An action plan was subsequently approved in April 2008.
However, this action plan remains largely unimplemented and no budget
for these activities has so far been allocated. During my visit
to Pristina in 2009, the Minister of the Interior drew my attention
to the importance of avoiding large-scale forced returns, which
would put a strain on Kosovo’s already limited economic resources.
Note
93. So far, UNHCR data indicate an interesting but at the same
time worrying trend: overall forced returns to Kosovo are not increasing
(they were 3 219 in 2007; 2 550 in 2008; and 2 407 in 2009); however,
the return of people from minority communities which could still
be in need of international protection is on the way up (68 people
in 2007; 71 people in 2008 and 136 in 2009).
94. Addressing the issue of displacement and the right of displaced
persons to return in safety and dignity and with a genuine prospect
of reintegration is central to ensuring the peaceful coexistence
of communities in Kosovo. In this context, I would like to mention
some important questions, on which I will elaborate further in the
continuation of my work.
7.1 People in need
of international protection
95. As UNHCR has consistently pointed out, every claim
for international protection should be considered on the basis of
its individual merits. As regards Kosovo in particular, the changed
situation on the ground due to the unilateral declaration of independence
does not eliminate the risk of persecution, serious harm or cumulative
discrimination that some groups of people might suffer.
96. According to UNHCR,
Note these
groups include:
- Kosovo Serbs
and Kosovo Albanians inhabiting areas where they are in the minority;
- Kosovo Roma inhabiting any part of Kosovo;
- Ashkali and Egyptian minorities (who might be confused
for Roma and who, similarly to the Roma, often lack identity papers
and therefore face difficulties as regards access to social services,
health care and education);
- persons in ethnically mixed-marriages and persons of mixed
ethnicity;
- persons perceived to have been associated with the Serbian
authorities after 1990;
- victims of trafficking;
- victims of domestic violence;
- people whose claims for protection are based on sexual
orientation.
7.2 Property rights
97. People who fled Kosovo in 1999 and 2004 left behind
their houses, businesses and land. Since then, many properties have
been damaged, destroyed, illegally occupied and constructions have
been built illegally.
98. In the specific case of Kosovo, some elements complicate the
restoration of property rights:
- before
1999, property transactions were often informal and not adequately
registered;
- most of the records of property rights for the pre-1999
are in Belgrade;
- existing ownership certificates are not always accurate
or authentic;
- cadastral bodies in Kosovo and Serbia do not co-operate
and they do not recognise each other’s ownership documents;
- the relevant legal framework is not always clear and consistent
and is based on different sources of law whose hierarchy is not
clear.
99. The restoration of property rights is an essential premise
for returnees to resume a normal life, as well described in Assembly
Resolution 1708 (2010) on solving property issues of refugees and internally
displaced persons. The restoration of rights to and physical possession
of property through restitution, or the provision of equivalent
property or value through compensation, are essential forms of redress
which have their legal basis in a number of Council of Europe instruments,
notably Articles 6, 8, 13 and 14 of the European Convention on Human
Rights (ETS No. 5), Article 1 of its Protocol No. 1 and Article
2 of its Protocol No. 4, Article 31 of the revised European Social
Charter (ETS No. 163) and Article 16 of the Framework Convention
for the Protection of National Minorities (ETS No. 157). In addition,
as far as IDPs are concerned, the Committee of Ministers itself,
in Recommendation Rec(2006)6, has confirmed their right to the enjoyment
of their properties and to repossess property left behind, failing
which they should be provided with adequate compensation.
100. During my recent visit I was told by the chairperson of the
supervisory board of the Kosovo Property Agency (KPA), the British
Ambassador Andy Sparkes, that the KPA should conclude processing
all the registered claims (40 718) by the end of 2011. This timeline
includes a setback of around six months due to the need to reconsider
a number of claims (possibly 87%) in which notification mistakes
were made: as a result of lack of co-operation between the KPA and
the Kosovo cadastral agency, the signposts placed on plots to indicate
property rights following KPA decisions did not correspond to the
exact location of the plots as indicated in the cadastral registry.
101. A positive development which will help improve the situation
of Kosovo Serbs who are displaced in Serbia proper is the conclusion
of a memorandum of understanding between the Kosovo Property Agency (KPA)
and the UNHCR Office in Belgrade, under which the latter will channel
information and documentary evidence presented by Kosovo Serbs in
Belgrade to the KPA in Kosovo in order to finalise decisions on property
claims. This memorandum, which has not been finalised yet, will
help circumvent the difficulties created by the decision of the
Serbian authorities to close down the KPA office in Belgrade, following
the entry into force of the Kosovo Constitution and the transfer
of KPA under the authority of the International Civilian Representative.
102. As pointed out by the NGO PRAXIS, which provides legal advice
and representation to claimants, issuing a decision is not the end
of the story:
Note
- the enforcement of eviction
orders is not systematic.
- many cases have not been submitted to the KPA because
the deadline was not long enough and has expired.
103. In such cases, the only remedy available is before Kosovo
courts, with all the difficulties that this implies.
7.3 The integration
of displaced persons in Serbia proper
104. The return of internally displaced persons to Kosovo
should be a right but not an obligation. Every effort should be
made to ensure that dignified long-term solutions are found for
those who cannot or do not wish to go back.
105. The Serbian authorities should provide a viable integration
alternative for Kosovo IDPs who are in Serbia proper. During my
meetings with the Minister for Kosovo and Metohija and the Minister
for Social Affairs in Belgrade, I found a positive reaction to my
proposal of establishing, without further delay, programmes tackling the
high unemployment of IDPs and other measures intended to foster
their integration in society. I look forward to receiving more information
about the steps that will be taken in this context.
8 The media
106. Political influence on the media is a major problem.
First of all, print media cannot ensure its sustainability only
through sales (according to estimates made by the Kosovo Association
of Journalists, approximately each newspaper sells 3 000 copies
per day, at a price of 20 cents). This has made newspapers greatly
reliant on advertising as a source of funding. However, this affects
their editorial independence because nearly all the advertising
consists of job ads placed by the government, as the main employer
in Kosovo. On average, one third of daily newspapers is used for
advertising. This leads to a situation of generalised self-censorship,
in which journalists and editors avoid being too critical of the
government and the institutions for fear of losing their main source
of funding.
107. A more specific problem affects the independence of the public
broadcaster, RTK. The RTK used to be financed through licence fees
which were collected with electricity bills. This form of financing
was stable and ensured the independence of the broadcaster. However,
in November 2009, the Constitutional Court found that this procedure
was unconstitutional. As a result, financing through the licence
fees was discontinued. At present, the RTK is funded through the
ordinary Kosovo budget, until an alternative source of financing
is found. Needless to say, this affects the independence of the
public broadcaster.
108. Additional issues that were brought to my attention include:
- the lack of understanding, amongst
the political class, of the role of a public broadcaster, and the confusion
with the concept of “state broadcaster”;
- the political pressure exercised on the former Board of
the RTK, where several prominent figures were forced to resign;
- the lack of knowledge of the media sector amongst the
newly elected Board of the RTK.
9 The situation of
women
109. In Kosovo, there are a number of active women NGOs.
In the Kosovo Assembly, an informal group of women parliamentarians
has been set up. They all complained about the patriarchal model
of Kosovo’s society and the difficulty for women to have their voice
heard. Some NGO representatives pointed out that the international
presence in Kosovo, in particular UNMIK, has not done much to promote
gender equality and has sometimes even set a bad example. I strongly
believe that women in Kosovo can give an important contribution to
reconciliation between communities and to the strengthening of the
democratic character of the institutions.
110. Although from a legal point of view gender equality and non-discrimination
on gender grounds are recognised, the implementation of the law
is a different matter. The situation of women is particularly bad
in rural areas. In general, it is rare for women to have an independent
source of income, they hardly ever own the property where they live
and they are disadvantaged in the context of inheritance. In these
circumstances, even when they are victims of domestic violence,
they have a strong incentive not to divorce, also because, as a rule,
the custody of children is given to the father.
111. At the moment, there are around one thousand cases of violence
against women, including domestic violence, which have been reported
to the police, but this is likely to be only the tip of the iceberg.
112. Women who have been victims of trafficking encounter great
difficulties in reintegrating in society: involvement in prostitution
carries a great social stigma; there are no programmes or social
measures aimed at assisting these women.
10 The European Union
perspective
113. Since the 2003 summit in Thessaloniki, the European
Union has indicated its unequivocal support to a European perspective
for the Western Balkans and endorsed the introduction of European
partnerships as a means to materialise it.
114. The priorities of the European Partnership with Serbia including
“Kosovo as defined by United Nations Security Council
Resolution 1244” are set out in Council Decision 2008/213/EC of 18 February
2008. They are divided into short and medium-term priorities which
Kosovo is meant to address with a view to meeting the criteria for
further integration.
10.1 The European Commission
115. Progress towards these criteria is assessed in periodic
progress reports, the most recent of which dates from November 2009
and mentions as main areas of concern the need for the Kosovo Government
to ensure administrative capacity and to have the political determination
to implement and enforce adopted legislation and the necessary reforms.
Note Amongst
the key areas to be strengthened are the rule of law, anti-corruption policy
and the fight against organised crime. Enhancing dialogue and reconciliation
between communities remains a major political challenge.
Note
116. The way forward for Kosovo in the Stabilisation and Association
Process is indicated in two recent communications, one setting out
the enlargement strategy and priority for 2009-2010
Note and a second one specifically devoted to
Kosovo.
Note In the latter, the Commission
proposes to start work towards visa liberalisation for people from
Kosovo, begin preparations for a comprehensive trade arrangement
with Kosovo and explore ways for Kosovo to be involved in initiatives
in areas such as employment, enterprise and education. The Commission
also proposes that the European Union should upgrade its political
dialogue with Kosovo and widen the scope of the European Commission
financial assistance to include cross-border co-operation. All these
measures should be implemented progressively and be conditional
upon progress made by Kosovo.
117. This emphasis on supporting the socio-economic development
of Kosovo is a reminder of the driving force represented by the
European Union, not only politically but also economically: the
European Union is the main trading partner of Kosovo and its main
source of foreign direct investments.
10.2 The European Parliament
118. The support given by the European Parliament to the
Ahtisaari Plan is well known,
Note as is its call for further
recognition of Kosovo’s independence,
Note which
has provoked severe criticism from Serbia and other non-recognising
countries.
119. During some meetings with MEPs, I also realised that, despite
the European Union’s status neutrality, the European Parliament
has developed, over the years, a number of inter-parliamentary activities
with the Kosovo Assembly.
120. In the period 2002-2008, the European Parliament Delegation
for relations with the countries of South East Europe (DSEE) organised
regular informal meetings with members from the Kosovo Assembly.
These meetings took place alternatively in Brussels and Pristina.
The delegation from the Kosovo Assembly was composed of the President
of the Kosovo Assembly and other assembly members, usually drawn
from its bureau members. At the request of the DSEE, a Kosovo Serb
member of the Kosovo Assembly was always part of the delegation.
To distinguish them from “formal meetings”, these gatherings lasted
only one day instead of two.
121. After the declaration of independence and on the strength
of the European Parliament’s support for the Ahtisaari Plan, in
March 2008, the DSEE organised the first formal inter-parliamentary
meeting with a delegation from the Kosovo Assembly in Brussels,
Notefollowed by a second meeting in Pristina
the following year.
Note
11 The Council of
Europe and Kosovo
122. As an international organisation, it is not a prerogative
of the Council of Europe to recognise or not the sovereignty and
independence of an entity. In the present situation, where 33 out
of 47 of its member states have recognised Kosovo, the Council of
Europe applies a policy of status neutrality, in the same way as
all other European organisations, such as the European Union and
the OSCE.
123. One of the main concerns that led to tabling the motion which
initiated this report was that the split between those Council of
Europe member states who recognise Kosovo as a state and those who
do not should not hamper the continuation of the Council of Europe’s
work in Kosovo.
124. I am therefore pleased that, in reply to Assembly
Recommendation 1822 (2008) on developments as regards the future status of Kosovo,
the Committee of Ministers decided not only on the continuation
of activities concerning the preservation and promotion of the cultural
heritage, education and the development of civil society but also
an increase of activities to promote human rights, including the
rights of minorities, the rule of law and democracy. It also added
that the fight against corruption and organised crime should feature amongst
future priorities.
125. At the present moment, the Group of Rapporteurs on Democracy
of the Ministers’ Deputies (GR-DEM) is discussing a number of new
or strengthened projects proposed by the Secretariat. Some of them
aim at bringing Council of Europe rule of law standards and methodologies
more directly to bear in relation to the fight against corruption,
economic crime and, potentially, human trafficking and the sexual
exploitation of children; others try to do so in relation to the
enforcement of the rights guaranteed by the European Convention
on Human Rights in the work of legal professionals, combating ill-treatment
and impunity by law enforcement agencies; strengthening civil society
and the ombudsperson institution, and reinforcing the independence
of the media and freedom of expression.
126. I cannot but agree with the broadening of the scope of Council
of Europe activities in Kosovo and I hope that these proposals will
be endorsed by the Committee of Ministers. The Council of Europe
activities in the field of education and protection and rehabilitation
of the cultural and religious heritage are of key importance in
order to contribute to creating a climate of dialogue and understanding
between people from different communities. Recently these activities
have been expanded, also through a reinforced presence of Council
of Europe project staff on the ground. I strongly support this process.
127. However, in parallel, the Council of Europe should contribute
to addressing other problems which affect the life of people in
Kosovo, namely in the field of the protection of human rights and
the respect of the rule of law, in co-ordination with other actors
active in Kosovo.
128. In this respect, I would like to recall that, in 2004, the
Council of Europe and UNMIK signed agreements to ensure the work
of the Advisory Committee of the Framework Convention for the Protection
of National Minorities and the Committee for the Prevention of Torture
in Kosovo. These agreements need updating in the light of the changed
situation on the ground, such as the change in UNMIK’s functions,
the deployment of EULEX and the increased role of the Kosovo institutions
in such fields. In addition, the feasibility of extending the application
of other Council of Europe monitoring mechanisms in Kosovo, for
the benefit of its inhabitants, might be considered.
129. Finally, I hope that the Council of Europe office in Pristina,
which currently counts four members of staff belonging to the Directorate
General of Democracy and Political Affairs (one international and
three locals), with two locally recruited teams working on projects
in the areas of education and protection of the cultural heritage,
will be given more resources in order to ensure the Organisation’s
visibility in Kosovo and the effectiveness of its work. In particular,
I think that the staff of the office should reflect the multi-ethnic composition
of Kosovo and that the capacity of the head of office to provide
political analysis and early warning should be strengthened through
appropriate staff reinforcement.
130. In order to highlight the close co-operation between the Council
of Europe and the European Union, I would like to mention that,
in 2009, 90% of the financial resources for Council of Europe work
in Kosovo originated from Joint Programmes funded by the European
Commission. I am pleased to say that, in the various discussions
I had with Commission representatives, it was made clear to me that
a more proactive and far reaching involvement of the Council of
Europe would be welcome.
12 Conclusions
and recommendations
131. The Council of Europe should set itself a clear objective
as regards Kosovo. In the light of the mandate of our Organisation,
it seems to me that the most obvious objective should be contributing
to developing a stable, viable, peaceful, democratic and multi-ethnic
Kosovo for the benefit of all individuals. This is for me the lowest
common denominator on which all member states could agree, irrespective
of their position on the status issue.
132. In pursuing this objective, Council of Europe member states
should embrace with resolve an approach of “diversity on status
but unity on engagement”, similar to the one adopted by the European
Union. In this context, I very much support the recent discussions
taking place within the Ministers’ Deputies aimed at broadening
the range of Council of Europe activities in Kosovo, in particular
by putting more emphasis on our fields of excellency: democracy,
human rights and the rule of law. In particular, I would recommend
that:
- the Committee of Ministers
set up activities aimed at improving the rule of law, fighting corruption
and economic crime and reinforcing the judiciary in Kosovo;
- new modalities to ensure the resumption of the work of
the Committee for the Prevention of Torture (CPT) and the Advisory
Committee of the Framework Convention for the Protection of on National Minorities
should be developed, in the light of the new situation on the ground;
- the issue of how to extend the application in Kosovo of
other Council of Europe monitoring mechanisms should be given attentive
consideration;
- further thought should be given to how to implement Council
of Europe activities in the field of freedom of the media, gender
equality and anti-trafficking in Kosovo.
133. Working to ensure that people in Kosovo can enjoy standards
of democracy, human rights and the rule of law equivalent to those
applicable in Council of Europe member states implies working in
synergy with the complex institutional layout present in Kosovo.
134. The Council of Europe should continue its fruitful co-ordination
and consultation with international partners, in particular the
European Union, UNMIK, OSCE, and should be proactive in proposing
joint work.
135. At the same time, it cannot be disputed that the Kosovo institutions
have de facto authority over the territory of Kosovo (and also legal
authority according to the majority of Council of Europe member
states) and that they cannot be excluded from the circle of Council
of Europe interlocutors if the Council of Europe wants to have any
impact. In my opinion, the policy of status neutrality should not
be considered as an obstacle to having direct working relations
with the Kosovo authorities, at all levels, in the same way as other
international organisations do. Although precious partners, neither
UNMIK nor EULEX should be considered as necessary intermediaries.
136. Finally, in the light of the shortcomings observed in the
functioning of democratic institutions in Kosovo, the Parliamentary
Assembly, for its part, might wish to initiate a dialogue with representatives
of the political forces elected to the Kosovo Assembly on issues
of common interest, while taking into account the legitimate interests
and concerns of Serbia.
