C Explanatory memorandum by Ms Azadeh
Rojhan, rapporteur for opinion
1 Introduction
1. The Secretary General of the
Council of Europe received an application for Kosovo’s membership
of the Council of Europe on 12 May 2022. The Committee of Ministers
transmitted this application to the Parliamentary Assembly for consultation
on 24 April 2023, for its Opinion on the application.
Note The Committee on Political Affairs
and Democracy appointed Dora Bakoyannis (Greece, EPP/CD) as rapporteur
on 19 June 2023 and she visited Kosovo on 1-3 November 2023.
Note
2. On 21 June 2023, I was appointed as rapporteur for opinion
of the Committee on Legal Affairs and Human rights. Béatrice Fresko-Rolfo
(Monaco, ALDE) was appointed as rapporteur for opinion of the Committee
on Equality and Non-Discrimination on 14 September 2023. As rapporteurs
for opinion, we visited Kosovo on 3-6 December 2023. During our
visit, we met with representatives from the government, the judiciary,
the Kosovo Assembly, the Ombudsperson, the Language Commissioner,
civil society and the international community, and I am grateful
to them all for their insights and their time. The programme of
the visit is contained in appendix. Prior to the visit we also had
the benefit of reading the Eminent Lawyers’ report.
Note
3. My conclusion is that Kosovo meets the criteria for membership.
Continued progress is needed as concerns respect for the rule of
law and human rights, as is the case for many members of the Council
of Europe. I have identified below areas where further work might
be needed, and, importantly, this includes the attitude of government
representatives, including at ministerial level, towards the rule
of law and respect for the independence of the judiciary.
2 Criteria for
membership
4. The criteria for membership
are set out in article 4 of the Statute of the Council of Europe
which provides that “[a]ny European State which is deemed to be
able and willing to fulfil the provisions of Article 3 may be invited
to become a Member of the Council of Europe by the Committee of
Ministers”. Article 3 of the Statute provides that “[e]Every Member
of the Council of Europe must accept the principles of the rule
of law and of the enjoyment by all persons within its jurisdiction
of human rights and fundamental freedoms and collaborate sincerely
and effectively in the realisation of the aim of the Council as
specified in Chapter I”.
5. According to Chapter I (which contains article 1) of the Statute
of the Council of Europe “[t]he aim of the Council of Europe is
to achieve a greater unity between its Members for the purpose of
safeguarding and realising the ideals and principles which are their
common heritage and facilitating their economic and social progress”,
which is to be pursued through the organs of the Council “by discussion
of questions of common concern and by agreements and common action
in economic, social, cultural, scientific, legal and administrative
matters and in the maintenance and further realisation of human
rights and fundamental freedoms”.
6. In order to accede to the Council of Europe, Kosovo must thus
be (1) a European State; (2) able and willing to collaborate sincerely
and effectively in the aim of greater unity between its members
for the purpose of safeguarding and realising the ideals and principles
of the Organisation, and (3) able and willing to accept the principles
of the rule of law and respect for human rights.
3 A European State
7. Not all member States of the
Council of Europe have recognised Kosovo as a State. It is therefore prudent
to address the criteria of statehood and implications of accession
to avoid any ambiguity or confusion.
8. The criteria for statehood are that a State, as a person of
international law, should possess (a) a permanent population; (b)
a defined territory; (c) a government; and (d) the capacity to enter
into relations with other States.
Note As stated by the eminent
lawyers, their “examination and visit show that the Kosovo authorities exercise
jurisdiction over a territory and population and have considerable
international activities”.
Note The eminent lawyers did not raise any
statehood-related concerns about Kosovo becoming a member of the Organisation,
considering that “the recognition of States is, in general, seen
as distinct from the matter of membership in international organisations”.
Note It was moreover clear from the work undertaken
in preparation of this opinion that Kosovo has a permanent population,
a defined territory, a government and the capacity to enter into
relations with other States. This is true even if some States have
not recognised Kosovo as a State. Consequently, Kosovo meets the
criteria for membership notwithstanding the fact that not all members
of the Council of Europe have recognised Kosovo as a State.
9. However, the effect of admission of a country as a member
of the Council of Europe should not imply recognition for non-recogniser
States. This flows from both State practice and legal doctrine.
Note
10. That said, in line with a member State’s obligations under
the Statute of the Council of Europe, all members of the Council
of Europe have an obligation to “collaborate sincerely and effectively
in the realisation of the aim” of the Organisation (Article 3 of
the Statute). It is therefore incumbent upon all members to co-operate
fully with the Organisation, including with States members of the
Organisation where this relates to the business and effective functioning
of the Council of Europe and its aim.
11. Therefore, whilst the accession of Kosovo to the Council of
Europe does not imply recognition by a non-recogniser State, all
member States must sincerely co-operate, within the framework of
the Organisation, with Kosovo as a member of the Organisation. To
do otherwise would risk breaching a member State’s obligations under
the Statute and in particular the duty of sincere and effective
collaboration under its article 3.
12. As a consequence, no discriminatory conditions should be attached
to Kosovo’s membership that would, for example, amount to discrimination
on the grounds of nationality. For instance, passports of Parliamentary Assembly
or Congress of Local and Regional Authorities members from Kosovo
must be accepted for travel necessary for those roles; the same
goes for the members of the Organisation’s monitoring bodies appointed in
respect of Kosovo. Such conduct is also required by the General
Agreement on Privileges and Immunities of the Council of Europe.
4 Is Kosovo able
and willing to collaborate sincerely and effectively in the aim
of greater unity between the members of the Council of Europe for
the purpose of safeguarding and realising the ideals and principles
of the Council of Europe?
13. In my view, the answer should
be “yes”. Kosovo is clearly familiar with a relatively advanced
level of co-operation with the international community in relation
to the rule of law and human rights given its recent history. The
challenge that could potentially be posed by the non-recognition
by a minority of member States of the Council of Europe can be addressed
through practical measures and by highlighting the obligation on
all member States to sincerely and effectively co-operate within
the framework of the Organisation and in the realisation of its
aims.
5 Is Kosovo able
and willing to accept the principles of the rule of law and respect
for human rights?
14. Kosovo has seen substantial
progress in respect for the rule of law and human rights in recent
years. The European Convention on Human Rights (ETS No. 5), the
Framework Convention for the Protection of National Minorities (ETS
No. 157) and the Convention on Preventing and Combating Violence
against Women and Domestic Violence (CETS No. 210, “Istanbul Convention”)
are all directly applicable under the Constitution and protected
under the law of Kosovo. Indeed, Kosovo’s courts are also required
to have regard to the case law of the European Court of Human Rights
when adjudicating and, on the whole, seem to do so. Across the board,
all interlocutors noted the excellent quality of Kosovo’s laws and
constitutional protections in terms of respect for the rule of law
and human rights. However, the clear perspective of my interlocutors
was that implementation of these standards and laws required further
work for these laws and protections to be effective.
6 Conclusions of
the Eminent Lawyers’ report
15. The Eminent Lawyers’ report
concluded that in Kosovo “legal rules are generally in line with
international standards” or even go beyond these standards.
Note However, there have been tensions with Serbia
and with the Kosovo Serb community. The eminent lawyers considered
that increased co-operation with the Council of Europe, including
the extension of the jurisdiction of the European Court of Human
Rights, could contribute to the improvement of the situation. In
terms of democracy, they concluded that Kosovo is a functioning parliamentary
democracy providing a level of self-government in accordance with
Council of Europe standards, but that progress on an association
of Serb majority municipalities could improve the situation. As
concerns the rule of law, they found that the legal framework in
Kosovo generally corresponds to Council of Europe standards, with
strong guarantees for the independence of the judiciary, but that
specific individual issues remained around the length of proceedings,
the non-implementation of the Decani judgment, the handling of tensions
in the north, and the executive not always fully respecting the
independence of the judiciary through undue criticism. As concerns
human rights, they made recommendations relating to education, language
rights and minority rights.
7 My assessment
in light of the Eminent Lawyers’ report, of the results of the fact-finding
visit to Kosovo and of the draft Opinion prepared by the Committee
on Political Affairs and Democracy
16. Broadly speaking, the Eminent
Lawyers’ report was understood by all interlocutors I met in Kosovo
as representing a balanced and fair picture of the state of democracy,
rule of law and human rights in the country. Some elements contained
in the report perhaps deserve more attention than others and in
respect of some elements, matters have further developed since that
report was produced.
17. Recommendation relating to the issue of the Association of
Serb majority municipalities: the Eminent Lawyers recommended that
“the Kosovo authorities abandon their opposition to the establishment
of the Association and enter into negotiations in good faith on
the possible statute of such an association which would have to
be fully in line with the Kosovo legal order”. Meanwhile, Prime
Minister Albin Kurti has agreed to the establishment of such an
Association and thus has apparently abandoned ‘opposition’ to this.
This is in accordance with Kosovo’s international obligations resulting
from the acceptance, in 2013, of the Brussels Agreement, as the
draft Opinion rightly recalls. But it should also be noted that
successful progress on this does not depend solely on the central
Government of Kosovo, and therefore the Assembly’s recommendations
on this need to be carefully calibrated to reflect that. It should
also be recalled that an association of this type is not usually
a requirement for membership of the Council of Europe, nor a reflection
of the minimum legal standards of the Council of Europe. As a consequence,
whilst this endeavour can be encouraged provided it is likely to
result in constructive progress, we should avoid being too prescriptive
around the details lest this be a hostage to fortune or interfere
with or undermine separate negotiations on the normalisation of
relations.
18. In relation to respect for the rule of law, the Eminent Lawyers
and my interlocutors in Kosovo agreed that the legal framework is
good, but that there were challenges in places with the implementation
of the law. Overall, I am satisfied that the rule of law is respected
to the requisite standard for membership. However, there is obviously
scope for improvement, and ongoing work.
19. In my opinion, the following issues merit specific attention:
a The long-awaited implementation
of the Kosovo Constitutional Court judgment on the Visoki Decani Monastery
Case on 14 March 2024: it should be recalled in this context that
the decisions of the Constitutional Court are binding on the judiciary
and all legal and natural persons and institutions in Kosovo (Art
116(1) of the Constitution), and it is notable that according to
the Constitutional Court, all but 3 of the approximately 2 000 judgments
in respect of which the Constitutional Court has made a non-enforcement
decision and notified the State Prosecutor, have been implemented.
Note This shows a general ability to respect
the rule of law, effective procedures for enforcement, and holds
promise for Kosovo’s ability to execute judgments of the European
Court of Human Rights. But the Visoki Decani Monastery case serves
as an example that in rare cases, there were inexcusable delays
and reluctance for timely and effective implementation of judgments.
The Cadastre (Land Registry) of the municipality continued to fail
to enter the name of the Monastery in the relevant Land registry
notwithstanding the clear obligation to do so and the clear judgment
of the Constitutional Court. Such a persistent and blatant lack
of respect for the rule of law was concerning, particularly in light
of the intransigence on the part of the executive who seemed more
willing to set out reasons for non-execution than to take action
to encourage better compliance with the rule of law. I therefore
supported the position of Ms Bakoyannis, who made the execution
of this judgment a pre-condition for presenting her draft preliminary
Opinion to the Committee on Political Affairs and Democracy. On
a positive note, this, and other cases, demonstrate the independence
of the judiciary and its respect for the rule of law – in particular
the higher Courts – as it was clearly capable of ruling on cases
independently of government interests and wishes. In future, the
Prosecutor’s Office should act more swiftly in respect of such a
blatant and persistent refusal by officials to comply with binding
court judgments, and give priority to such cases.
b Respect by the executive for the independence of the judiciary:
the Eminent Lawyers’ report recommended that the “Kosovo authorities
should fully respect the independence of the judiciary including
by refraining from undue criticism undermining trust in the judiciary”.
It was therefore very regrettable that even in our meetings with
them, some ministers seemed to fail to understand the importance
of respecting the independence of the judiciary, specifically the
importance of refraining from seeking to exert pressure or influence
over the judiciary through personal attacks against judges and polemic
criticism of judgments or other court decisions, including in relation
to ongoing criminal trials. It is unclear whether this is a problem
specific to individual current ministers or a wider problem owing
to an inadequate culture of restraint on the part of politicians.
A better culture of respect for the independence of the judiciary
and the separation of powers should be encouraged, with a focus
on greater restraint. I therefore welcome that the Kosovo authorities
have committed to fully respecting the independence of the judiciary
including by refraining from undue criticism undermining the trust
in the judiciary, as reflected in the draft Opinion.
c Respect for administrative processes and the adequacy
of decision making: Specific examples cited during our visit concerned
not only expropriations, but also more general issues with respect
to the rule of law and the need to follow the correct legal processes.
This included a lack of willingness to genuinely redress the situation
in instances where the correct processes had not been followed.
This in turn frequently obliges persons at the receiving end of
such decisions to rely on the courts to remedy mistakes, thus adding
to the excessive case load of the courts and delayed judgments.
Examples included failure to follow the correct procedures with
regard to purported expropriations in the north of Kosovo (accompanied
by the lack of a proactive approach by the administrative authorities
to correct these failings – thus forcing the courts to intervene).
We also heard a number of concerns about undue political interference
in public appointments processes and concerns that public officials
were unable to take effective decisions, thereby impacting the possibility
of citizens to obtain an outcome as regards their rights without
the need to go to court, for example in respect of pensions or other
payments. That said, significant work is clearly ongoing to tackle
corruption and to improve processes, though some of this will take
time to bear fruit. An improved culture of respect for legal processes
and the appropriateness and adequacy of decision making would be
of significant benefit to the citizens of Kosovo and to the rule
of law. Concrete remedial action could consist in establishing an
internal administrative complaint mechanism analogous to the German Widerspruchsverfahren, which would allow
the senior echelons of the relevant administrative authorities to
swiftly correct the mistakes of the lower echelons without the issue
having to be taken to court, which should always be a remedy of
last resort.
d Fight against corruption and organised crime: while it
has been noted that Kosovo has made progress in the fight against
corruption and organised crime, its fully-fledged participation
as State party to the enlarged agreement on the Group of States
against Corruption (GRECO) and in the Committee of Experts on the
Evaluation of Anti-Money Laundering Measures and the Financing of
Terrorism (MONEYVAL) is worth pursuing without delay. Kosovo would
have much benefit to derive from the peer review process put in
place by these bodies and from a swift implementation of their recommendations. Membership
in GRECO is the automatic consequence of the ratification of the
Council of Europe’s Criminal or Civil Law Conventions on Corruption.
The timely ratification of these conventions, included as a commitment
for the Civil Law Convention on Corruption (ETS No. 174) and a recommendation
in the draft Opinion, is therefore particularly important.
20. As concerns respect for human rights, the overarching framework
of protection for human rights is good, in particular the constitutional
protections and the embedding of the European Convention on Human
Rights (“the Convention”). However, in specific areas, there are
real risks that, were Kosovo to accede to the Convention, its laws
and/or practices would not respect the requirements of the Convention,
as interpreted and applied by the European Court of Human Rights
(the Court). Whilst these issues are not a barrier to accession, it
is highly likely that Kosovo will need to make efforts to address
them in order to avoid the Court finding violations of Convention
rights, in particular in the following areas:
a Pre-charge and pre-trial detention (article 5 of the Convention).
There seems to be excessive recourse to pre-charge and pre-trial
detention, for unduly lengthy periods of time; based on insufficiently
reasoned grounds for the deprivation of liberty; often with inadequate
defence rights (including a lack of timely translation of information
supporting the detention); and an inadequate consideration of alternatives
to pre-charge/pre-trial detention. Of even more concern, there were
reports of efforts by politicians to publicly criticise and place
pressure on members of the judiciary to intimidate them into detaining suspects
in cases where detention might not have been necessary (and thus
could be found arbitrary). A concerted effort is required to address
these failings and to improve practices.
b Excessive length of proceedings (article 6 of the Convention).
There are well-known concerns regarding the excessive length of
proceedings, with particular problems relating to the appellate
court sending cases back for retrial (often many times). There was,
however, a real recognition by the judiciary of the scale of the
problem, and responded with plans for training judges, amendments
to the applicable laws and guidelines, and plans to tackle poor
practices where they persisted. The creation of a specific remedy
for excessive length of proceedings modeled on similar legislation
in other member States and the implementation of improvements of
administrative practices recommended above (paragraph 18) could
bring some relief.
c Hate crimes and domestic violence (articles 2 and 3 as
read with article 14 of the Convention). In relation to hate crimes,
the laws and the practice of the police seem good, but more work
is needed to ensure that potential hate motivations of crimes are
investigated and prosecuted. Further training and efforts to promote
awareness and sensitivity of these issues are needed. Guidance should
be rolled out for the prosecution service and the judiciary, to
improve their awareness of hate crimes and their ability to recognise
hate elements of offences; and to ensure that victims of such offences
are treated with sensitivity. Moreover, the police, prosecution
and judiciary should improve their response to domestic violence
and related offences, especially violence against women. In this
context, I should like to highlight that the Kosovo Assembly has
already in September 2020 made the Istanbul Convention directly
applicable in Kosovo.
Note
d Anti-Discrimination and LGBTI rights (articles 8 and 14
of the Convention and Protocol No. 12 to the Convention (ETS No.
177)). In line with the Court’s case law, same-sex partnerships
should be recognised. Whilst the draft Civil Code made reference
to this, to be regulated by a separate law, it has yet to be adopted
by the Kosovo Assembly. Without this, couples in same-sex relationships
are unable to benefit from the same rights as those in heterosexual
relationships. In relation to transgender rights, whilst Kosovo’s
courts have recognised gender recognition, there is still no legislation
enabling this to be done without recourse to the courts (such as
through entry on a register). Further efforts will also be needed
to avoid discrimination in relation to the right to family life,
for example as regards adoption. Given the sensitive nature of all
issues pertaining to discrimination, Kosovo should also be requested
to sign and ratify Protocol 12 to the Convention, which adds a free-standing
general prohibition of discrimination to the protection afforded
by article 14 of the Convention, which is accessory to the rights afforded
by its other provisions. I am pleased that the ratification of these
protocols is already included in the list of recommendations in
paragraph 15 of the draft Opinion. As to the draft civil code, I
leave it up to the opinion by the Committee on Equality and Non-Discrimination
to consider adding a specific recommendation.
e Recommendations relating to the police: I agree with the
Eminent Lawyers and the Committee on Political Affairs and Democracy
that the use of special police forces in northern Kosovo is evidently
a source of tension, but I also consider that this is a complex
issue. There have been notable instances of disorder and risks to
life in northern Kosovo with the stockpiling of weapons, significant
levels of criminality and the killing of a policeman. Moreover,
the withdrawal of Kosovo Serbs from institutions (and the subsequent
intimidation of Serbs who remained or joined) has affected the composition
of the police in northern Kosovo. Given the risks to security in
the area, there is a duty on the State to ensure sufficient security
to protect life and safety. That said, policing must reduce and
not exacerbate such risks. I would therefore suggest that the focus
should be more on the quality of policing. Ideally, recruitment
should be encouraged from the local community. More specifically,
police deployed in the north of Kosovo should use (and necessarily
be trained in) de-escalatory policing techniques, ideally using
community-based policing. Only police who speak the local language
(which is also an official language) should be deployed in northern
Kosovo. I heard from multiple sources how few police speak both
languages; this needs to be tackled and moreover can be tackled
through improved mandatory language training. I therefore recommend
that only police speaking the local language to a sufficient degree
be deployed in northern Kosovo, that they be trained in de-escalatory
policing techniques, and that all efforts be made to recruit police
from the local community.
f Language issues in the justice system: Improvements to
language training and education are clearly needed to ensure sufficient
translators and interpreters to meet the constitutional requirements
for bilingualism. Failings in this respect have a potential negative
impact on all who come into contact with the justice system, including
not only the police (see above), but also the prosecution service,
the courts, probation services and in detention centres. There are
consequent risks of unjust results in their dealings with the police
and justice system for those less able to interact meaningfully
with the authorities due to language barriers. I will however leave
the detailed comment on this overall recommendation to the rapporteur
of the Committee on Equality and Non-Discrimination.
g Protection of the peaceful enjoyment of possessions and
right to education: whilst Protocol No. 1 to the Convention (ETS
No. 9) on, inter alia, the
right to property and the right to education is transposed into domestic
law by the Kosovo Constitution, its signature and ratification,
in addition to that of the Convention itself, are necessary in order
to grant the European Court of Human Rights jurisdiction over any
alleged violations. Given the importance of property issues in Kosovo,
in particular in the areas with strong minority populations, I should
like to stress the importance of the commitment requested in the draft
Opinion to sign and ratify Protocol No. 1. It should be noted that
Article 1 of Protocol 1 as interpreted by the Court provides protection
against expropriations without adequate procedural safeguards, compensation
and without justification by a public interest purpose. The Ahtisaari
Plan, the implementation of which the draft Opinion proposed by
the Committee on Political Affairs and Democracy rightly requires,
goes beyond these protections. The property of the Orthodox Church
is protected against any expropriation, including for purposes and
following procedures that would generally satisfy Article 1 of Protocol
No. 1. The safeguards and procedures set out in the law need to be
followed at all times. This is all the more important when dealing
with expropriations in national minority areas where sensitivities
are heightened. It is important that the executive realises and recognises
that mistakes were made. These need to be rectified, with appropriate
explanations in fair proceedings. The executive must address past
failings – restarting the expropriation process ab initio if necessary. In relation
to the new draft law on expropriation, reference to the European
Commission for Democracy through Law (Venice Commission) for opinion
could be envisaged to help address any concerns or criticisms that
might arise.
h Abolition of the death penalty in all circumstances: given
the Assembly’s long-standing rejection of the death penalty, I should
also like to support the recommendation in the draft Opinion for
Kosovo to sign and ratify Protocol No. 13 to the Convention (ETS
No. 187).
i Protocol No. 16 to the Convention (CETS No. 214): whilst
it would be inappropriate to require signature and ratification
of Protocol No. 16 as a firm commitment, given that a number of
member States of the Council of Europe have not yet signed it five
years after its entry into force, it would be strongly advisable for
Kosovo to take this step. Protocol No. 16 allows the highest national
courts to request the European Court of Human Rights to give advisory
opinions on the interpretation of the Convention. This option would
be particularly valuable for Kosovo as a country with a relatively
young judiciary, required by its own constitution to directly apply
the Convention as interpreted by the Court. I therefore fully support
the recommendation to this effect in paragraph 15 of the draft Opinion.
8 Conclusions and
recommendations
21. I support the recommendation
of the Committee on Political Affairs and Democracy that Kosovo
be invited to become a member of the Council of Europe.
22. Kosovo is a “European State” for the purposes of Article 4
of the Statute of the Council of Europe and the criteria of statehood
under international law. It is however not recognised as such by
all members of the Council of Europe.
23. Kosovo’s accession to the Council of Europe is without prejudice
to the bilateral legal and political recognition of its statehood
by the member States of the Organisation.
24. However, Kosovo’s accession to the Council of Europe would
require all member States to “collaborate sincerely and effectively”
in treating Kosovo as a member of the Organisation and in working
functionally within the framework of the Organisation with Kosovo
as a member. A failure to do so could amount to a breach of Article
3 of the Statute.
25. Kosovo is willing and able to accept the principles of the
rule of law and respect for human rights. It has a strong legal
framework for the protection of the rule of law and human rights
and whilst some further work should be done in implementing these
protections, this is no barrier to accession.
26. Kosovo is willing and able to collaborate sincerely and effectively
in achieving greater unity between the members of the Council of
Europe for the purpose of safeguarding and realising the ideals
and principles of the Organisation.
27. Kosovo therefore meets the criteria for accession, and this
accession should be encouraged to improve the positive impact of
Council of Europe membership also in the wider region.
28. This assessment is based on the acceptance, by Kosovo, of
the list of commitments included in paragraph 14 of the draft Opinion
submitted by the Committee on Political Affairs and Democracy and
on the expectation that Kosovo will in due course follow the recommendations
in paragraph 15 of the draft Opinion and those in the proposed new
paragraph 16 designed to further strengthen the rule of law and
the protection of human rights in Kosovo, whose implementation should
be followed by the Committee on the Honouring of Obligations and
Commitments by Member States of the Council of Europe (Monitoring
Committee), as proposed in an amendment to paragraph 20 of the draft
Opinion.
