HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF THE UNITED NATIONS INTERIM ADMINISTRATION MISSION IN KOSOVO
The Human Rights Committee has considered the report of the United Nations Interim Administration Mission in Kosovo (UNMIK) on the human rights situation in Kosovo since 1999. This marked the first time that a United Nation mission has reported to a treaty body on measures taken to implement the provisions of a treaty, and may mark an important precedent for future administration missions.
At the beginning of the meeting, Dejan Šahović, Assistant Minister of Foreign Affairs of Serbia, said that United Nations missions did not have only declaratory obligations vis-à-vis the respect of human rights treaties; they had real responsibilities for their implementation. In the past seven years since UNMIK and the International Security Force in Kosovo (KFOR) had been administering the Province and providing security, human rights had been very much politicized. Human rights were not protected and respected and the human rights of members of minority ethnic communities, the Serbian community in particular, were used as a sort of bargaining chip. The message was clear: the human rights situation might improve in the future, but only if a certain status of the province was guaranteed. That position was unacceptable. Respect for human rights could not be made a condition for achieving any political goal in Kosovo and Metohija.
Introducing the UNMIK report, Alexander Borg-Olivier, Legal Adviser of UNMIK, said that UNMIK had striven to create a multi-ethnic judiciary, and had provided for positive discrimination hiring policies and other affirmative actions measures to do that. Since its establishment in 1999, UNMIK had been responsible for the promulgation of numerous regulations related to substantive and criminal law matters, and those new codes had brought Kosovo into greater conformity with European standards, and incorporated provisions of international human rights instruments, such as the Convention against Torture. UNMIK had made consistent efforts to provide returnees with a normal safe life. Recently, more and more reports appeared to indicate that economic and not security factors were the overriding issues in determining returns. Moreover, this year crime statistics had recorded a marked decline in ethnically motivated crimes. Despite UNMIK’s efforts, admittedly the situation of many Kosovo Serbs remained difficult. Cooperation from the Kosovo Serbs and from the Serbian Government in Pristina had not always been forthcoming.
In a complementary statement, Vedat Gashi, Chief Legal Adviser to the Prime Minister of the Provisional Institutions for Self-Government (PISG), said that Security Council resolution 1244 (1999), which established UNMIK, provided for the gradual transfer of UNMIK responsibilities to the PISG and that transfer was in progress. The latest example was the creation of two new ministries this year, the Ministry of Justice and the Ministry of the Interior. Those would be responsible for rights including the right to a fair trial and the right to liberty and security of persons.
In preliminary concluding remarks, Christine Chanet, Committee Chairperson, said that, on the positive side, it was quite clear that since UNMIK had been established new structures had at least been sketched out and considerable work had been done in that direction. However, while the report had contained a number of laws and regulations, there was a gap between those legal regulations and the actual reality on the ground. Other issues of concern remained the transfer of the Ombudsperson’s authority to the Human Rights Advisory Panel, in particular regarding oversight of UNMIK personnel, the lack of oversight for international judges, restrictions on movement, delays in court and legal procedures, and conditions of detention – which the delegation had acknowledged were deplorable by saying they would be better in 2007. While there was mention of a boycott by the Serb population of the new institutions, UNMIK also had the power to shape attitudes and perhaps to avoid a boycott by ensuring greater security for that community.
Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, the human rights protection gap in the North; the lack of effective measures to improve the situation of gender discrimination; the lack of protection for witnesses; the fact that UNMIK had no data regarding complaints of excessive use of force by its agents; and the apparent absence of investigations by UNMIK of missing-persons cases, which were reportedly widespread.
The Committee will issue its formal, written concluding observations and recommendations on the report of the United Nations Interim Administration Mission in Kosovo towards the end of its session, which will conclude on 28 July 2006. The consideration of the report was held over three meetings.
The United Nations Interim Administration Mission in Kosovo delegation also included other representatives of UNMIK and other representatives of the Provisional Institutions of Self-Government.
The Serbian delegation also included Slobodan Vukčević, Permanent Representative of Serbia to the United Nations Office at Geneva, Branislava Mitrović, Adviser in the Coordination Centre for Kosovo and Metohija, and other members of the Serbian Mission to the United Nations Office at Geneva.
Serbia is among the 156 States parties to the International Covenant on Civil and Political Rights and as such is obligated to submit reports on its performance aimed at implementing the provisions of the treaty. In presenting its initial report to the Committee (CCPR/C/SEMO/2003/1), on 19 and 20 July 2004, the then Serbia and Montenegro delegation explained its inability to report on the discharge of its own responsibilities with regard to the human rights situation in Kosovo, and suggested that the Committee invite UNMIK to submit a supplementary report. Therefore, without prejudice to the legal status of Kosovo, the Committee asked UNMIK to report on the situation of human rights in Kosovo since June 1999.
When the Committee reconvenes at 10 a.m. on Friday, 21 July, it is scheduled to continue its consideration of a draft revised general comment on article 14 (right to a fair trial), which it had begun at a previous session.
Report of the United Nations Interim Administration Mission in Kosovo
The report of the United Nations Interim Administration Mission in Kosovo (UNMIC) - (CCPR/C/UNK/1) - says the principle of non-discrimination is rooted in UNMIK regulations. The Constitutional Framework of Kosovo, the Anti-Discrimination Law, as well as the mandate of all of the Provisional Ministries, provide for legal protection against discrimination that has significantly improved formal equality of all groups subject to discrimination in Kosovo. Assessing the extent of discrimination, however, is difficult due to lack of data. The statistics that are available show disparity between majority and minority communities, and especially for Roma, Ashkali and Egyptians in respect of education, employment and poverty. Women, especially rural women, are mostly disadvantaged in respect to employment and education. To give effect to the principle of “Fair Representation in Civil Service”, UNMIK regulations and administrative decisions authorize employers to undertake targeted affirmative action measures. The Law on Gender Equality in Kosovo aims to promote and establish gender equality as a fundamental value for the democratic development of Kosovo society. On March 2004, the Prime Minister adopted the National Action Plan for the Achievement of Gender Equality. However, there are indications that many women are still not receiving the same amount of pay for the same work.
UNMIK regulations, the Juvenile Justice Code, and the Provisional Criminal Code of Kosovo all ensure that the laws are followed and that the operations of facilities in which persons are deprived of their liberty ensure the dignity and human rights of all detainees and prisoners. Concerning freedom of movement, six years after the end of the conflict, out of a total of some 250,000 internally displaced persons (IDPs), only 12,700 minority returns were registered by April 2005 to areas where their ethnic group constitutes a minority or to settlements where they belong to the majority but are faced with particular protection concerns. Although the security situation and efficiency of administration in protecting minority rights has improved since 1999, this only allowed for the return of a small number of displaced persons.
Presentation of Report
DEJAN ŠAHOVIĆ, Assistant Minister of Foreign Affairs of Serbia, said that deliberations in the Committee today and tomorrow were important in order to assess the implementation of the International Covenant on Civil and Political Rights in Kosovo and Metohija, but also to provide an example for future United Nations missions with complex mandates. Those missions did not have only declaratory obligations vis-à-vis the respect of human rights treaties; they had real responsibilities for their implementation, including to report to treaty bodies. The United Nations Interim Administration Mission in Kosovo (UNMIK) and the International Security Force in Kosovo (KFOR) had been administering the Province and providing security there for seven years now. During that period, human rights in Kosovo and Metohija had been treated in the context of standards implementation and had been very much politicized. Regrettably, standards were not implemented, i.e., human rights were not protected and respected. The human rights of members of minority ethnic communities in the Province, the Serbian community in particular, were used as a sort of bargaining chip. The message was clear: the human rights situation would perhaps improve in the future, but only if a certain status of the province was guaranteed. That position was unacceptable. Respect for human rights could not be made a condition for achieving any political goal in Kosovo and Metohija.
Regrettably, Mr. Šahović said, the UNMIK report reflected that situation. It was very extensive, mainly focused on the description of the legislation, but only marginally on the attempts undertaken by UNMIK and the provisional institutions of self-government to implement it. The report did not present the actual situation on the ground nor did it provide information on the practical implementation of the Covenant. However, a number of relevant reports submitted by the United Nations itself, including the Comprehensive Review of the Situation in Kosovo by the Special Representative of the Secretary-General, Kai Eide, the five reports made by the former Ombudsperson in Kosovo and Metohija, Marek Nowicki, as well as the reports of the UN Refugee Agency, the Organization for Security and Cooperation in Europe and major non-governmental organizations like Amnesty International and Human Rights Watch, provided a more realistic picture.
Mr. Šahović underscored that the lack of the rule of law was one of the major deficiencies in Kosovo and Metohija’s political and legal system, which was characterized by disorderliness and overall confusion, overlapping with lack of competence. There had been practically no progress in the last seven years in the investigation and prosecution of ethnically based incidents and in bringing to justice those responsible for abductions of Serbs, Roma and others, believed to have been carried out by the Kosovo Liberation Army (KLA) or other ethnic Albanian extremist groups or individuals. The fate of persons who had gone missing before and during the 1999 conflict in Kosovo and Metohija or after the arrival of UNMIK and KFOR was still unclear. At the end of 2005, the fate of a total of 2,450 persons was still unknown.
ALEXANDER BORG-OLIVIER, Legal Adviser of the United Nations Interim Administration Mission in Kosovo (UNMIK), introducing the report, said that UNMIK had undertaken the current report on the authority extended to it by the Security Council resolution 1244 (1999). That resolution gave UNMIK a number of important responsibilities, including for the protection and promotion of human rights. The establishment of the judiciary was the cornerstone of the rule of law in Kosovo. In 1999 there had been lawlessness and disorder in Kosovo. The establishment of UNMIK regulation 1999/24 had put an end to that. UNMIK then moved very quickly to establish a court system.
Mr. Borg-Olivier observed that in every post-conflict society there was a desire to settle scores, and Kosovo was not immune. Therefore, international judges and prosecutors were brought in by UNMIK in February 2000. UNMIK has also striven to create a multi-ethnic judiciary, and had provided for positive discrimination hiring policies and other affirmative actions measures to do that. Since its establishment in 1999, UNMIK had been responsible for the promulgation of numerous regulations related to substantive and criminal law matters relating to the rights of the accused. Those new codes had brought Kosovo into greater conformity with European standards, and incorporated provisions of international human rights instruments, such as the Convention against Torture.
In conformity with Security Council resolution 1244 (1999) and the Constitutional Framework, UNMIK was already undertaking transfer of its authority to the Provisional Institutions of Self-Government (PISG). With the adoption of Standards for Kosovo and the Standards Implementation Plan progress had been achieved. The implementation of standards was uneven, and it was certainly true that more remained to be done, Mr. Borg-Olivier conceded.
UNMIK had made consistent efforts to provide returnees with a normal safe life. Nevertheless it had to have a realistic approach: not all wished to return or wished to return to their original place of origin. On a positive note, Mr. Borg-Olivier said, a returns protocol between UNMIK, Belgrade and Pristina was expected to facilitate returns on an agreed basis. The events of March 2004 had marked a set back, but UNMIK and the PISG had responded promptly to those challenges. Recently, more and more reports appeared to indicate that economic and not security factors were the overriding ones in determining returns. Moreover, this year crime statistics had recorded a marked decline in ethnically motivated crimes. Despite UNMIK’s efforts, admittedly the situation of many Kosovo Serbs remained difficult. In that connection, cooperation from the Kosovo Serbs and from the Serbian Government in Pristina, had not always been forthcoming.
VEDAT GASHI, Chief Legal Adviser to the Prime Minister of the Provisional Institutions of Self-Government (PISG), said that it was useful to note that the current situation in Kosovo was owing to the humanitarian intervention by the international community to address a situation of human rights violations. Pursuant to Security Council resolution 1244, one of UNMIK’s responsibilities was the guarantee of human rights covered in the International Covenant on Civil and Political Rights. That resolution also provided for the gradual transfer of UNMIK responsibilities to the PISG. That transfer was in progress. The latest example was the creation of two new ministries this year, the Ministry of Justice and the Ministry of the Interior. Those would be responsible for rights including the right to a fair trial and the right to liberty and security of person.
Questions by the Committee Experts
A series of questions were submitted in writing by the Committee Experts in advance of the meeting, to which the delegation responded.
Constitutional and Legal Framework Within Which the Covenant is Implemented
Responding to the written questions, the UNMIK delegation said that there was only one recorded case in which the courts in Kosovo had directly applied the International Covenant on Civil and Political Rights. Between 1999 and 2005, there were 20 examples in which the courts had both directly applied the European Convention for the Protection of Human Rights and Fundamental Freedoms and endorsed the case law of the European Court of Human Rights.
Addressing the decision to remove the Ombudsperson’s competence to review the compatibility of acts of UNMIK with international human rights standards, the delegation noted that following the regulation establishing a Human Rights Advisory Panel in March 2006, complaints of human rights violations against UNMIK were transferred to the provisional Human Rights Advisory Panel, which was to be composed of three international jurists with a proven expertise in the European human rights system.
Turning to the relations between UNMIK and the Provisional Institutions of Self-Government, the delegation observed that some PISG representatives appeared to be very cooperative, while others were blatantly dismissive. Among those was the President of the municipality of Pristina.
It was not true that UNMIK regulations had failed to specify which provisions of the formerly applicable laws were being replaced. There had been legal certainty since 1999 on which former Yugoslav laws were applicable in Kosovo. In addition, UNMIK had established a clear mechanism, allowing application to the Special Representative of the Secretary-General for an authoritative legal determination and a number of such determinations had been issued. Finally, the PISG hoped to establish an independent legislative review body, the delegation said, to review if any gaps existed.
Addressing UNMIK’s capability to ensure full respect for human rights in all parts of Kosovo, the delegation acknowledged that parallel administrative, judicial and security structures – Serbian governmental bodies assuming jurisdiction over, or operating in the territory of Kosovo – had functioned in Kosovo since UNMIK’s establishment, especially in certain northern municipalities. Those structures created legal uncertainty, which in turn negatively affected human rights. Examples of that adverse effect were the cadastral offices of the Republic of Serbia and the non-implementation of the Immovable Property Rights Register established by UNMIK, which had led to the lack of property rights restitution and a low rate of repossession.
Responding to a call to report further on UNMIK’s institutional framework to implement its human rights responsibilities and to assess the effectiveness of such arrangements, the delegation said that the establishment of the Human Rights Advisory Panel would be an important step towards ensuring human rights protections in Kosovo. The Advisory Panel would address the effective lack of jurisdiction of the European Court of Human Rights over Kosovo. Resources for ensuring the prompt implementation of the Panel had been difficult, but the delegation was confident that it would now go ahead.
Violence against Women and Domestic Violence
The delegation said that the Ombudsperson Non-Discrimination Team had investigated a number of cases of gender discrimination, which were listed in its annual report. The UNMIK Office of Gender Affairs had advocated the inclusion of gender equality goals in the Standards for Kosovo. That achievement represented a crucial step for the advancement of the gender equality agenda in Kosovo and had led to the creation of the Office for Gender Equality in the Prime Minister’s Office, the preparation of the Kosovo Programme on Gender Equality, the promulgation of gender-sensitive legislation and the integration of gender issues in administrative instructions.
The delegation noted that prior to 2003 domestic violence had not been defined in legislation as an offence. Domestic violence had been confused with violation of public peace and order, a minor offence. In 2003, UNMIK promulgated the Regulation on Protection against Domestic Violence and, in 2005, the new Law on Social and Family Services, which articulated protection measures available to victims of domestic violence. In 2006 there were 341 cases of domestic violence in which victims’ assistance was required, in 2005, 592, in 2004, 414, and in 2003, 314. Assistance available included shelter, psychosocial support, and legal aid. The Centre for Protection of Women and Children, a local NGO, had received 3,650 requests for assistance during 2005, and 4,700 in 2006. The delegation felt that the increase in the incidence of domestic crime was taken as a positive sign, indicating a greater rate of reporting, rather than greater incidence, of such crimes.
Right to Life, and Prohibition of Torture and Cruel, Inhuman or Degrading Treatment
With regard to measures taken to prosecute perpetrators of ethnically motivated crimes, the delegation said that the requested statistics were not available at the moment. The rules of engagement that were being utilized by the International Security Force in Kosovo (KFOR) were classified and not releasable.
No data was available either concerning claims that KFOR and UNMIK police have used undue force, and the delegation was unaware that any such claims existed.
Regarding measures taken to protect the life and health of Roma, Ashkali and Egyptian internally displaced persons (IDPs), especially children, living in lead-contaminated settlements in north Mitrovica, the delegation said that following the realization of increased lead blood levels within certain families in the three IDP settlements in North Kosovo, an extensive analysis was immediately undertaken to determine the source of the pollution, provide short-term measures and develop a long-term strategy to deal with that situation. The pollution had been caused by illegal smelting of car batteries in the houses of some IDPs. The World Health Organization and UNICEF immediately responded with a list of nutrients to be provided to those communities. While medical and sanitary measures were being implemented, UNMIK began an extensive reconstruction programme of a camp for temporary relocation of the Roma, and that facility should be ready in the next few days.
Responding to a Committee query on the subject, the delegation said that there was no special programme for the policing of vendetta violence.
Elimination of Slavery and Servitude
Addressing the issue of human trafficking, the delegation said that in 2004, 425 victims of trafficking had been identified, and there had been 56 arrests made in that connection. In 2005, 445 persons were identified as victims of trafficking. A new trend showed an increase in Kosovo victims of trafficking and an increase in foreign victims of trafficking. The Kosovo Anti-Trafficking Plan of Action addressed prevention, protection, and prosecution activities. Inter-institutional working groups had been set up and a separate group to combat trafficking in children had been created.
Liberty and Security of the Person and Treatment of Prisoners
Regarding reports that numerous persons have been detained by UNMIK police and KFOR without an arrest warrant and that habeas corpus applications had often involved undue delays, the delegation remarked that after the NATO intervention in 1999 there had been no fully functioning law enforcement body in Kosovo. KFOR had been given the responsibility for law and order by the Security Council until an international civil law enforcement presence could be established. Only persons who represented a threat to KFOR or civil authorities could be arrested or detained. On arrest, all attempts had to be made to transfer the suspect to the custody of the civil law enforcement agencies within the first 18 hours of detention. KFOR was the last resort where civil law enforcement agencies were unwilling or incapable of taking responsibility for law and order.
In 2002, the International Security Force in Kosovo (KFOR) had elaborated the rights available to detainees, including the right not to be arbitrarily detained, to be informed of the reasons for detention, to have access to a lawyer of choice, and to appeal the detention. Detention was limited to 72 hours and in the case of arrests during court-ordered investigations the authorizing judge had previously been able demand the production of the suspect. Since 2004, persons arrested without a warrant had to be produced before a court immediately.
Addressing the internal inspections of conditions of detention in correctional facilities and police stations, the delegation said that an internal Kosovo Police Service inspectorate was in the process of being set up. That independent internal auditing body was expected to begin operating in 2007. The Organization for Security and Cooperation in Europe regularly monitored conditions within police detention cells. In addition, the International Committee of the Red Cross (ICRC) and the European Union monitors had previously visited prisons within Kosovo.
Oral Questions by Committee Experts
Committee Experts then asked various questions and made comments on a number of topics, including dissatisfaction that the Advisory Panel on Human Rights had been designated to take over the Ombudsperson’s role to monitor UNMIK activities; the insufficiency of rules and procedures alone, without implementation on the ground; information on the intentions of the Provisional Institutions of Self-Government (PISG) to address the protection gap in the North; the lack of effective measures to improve the situation of gender discrimination, which was still widespread and frequent, including by having women participate in decision-making processes and in UNMIK and PISG positions; the reported lack of protection to witnesses in cases being investigated by prosecutors for the International Tribunal for the Former Yugoslavia; and prison conditions.
An Expert was concerned that UNMIK’s avowal that it had no data regarding complaints of excessive use of force by its agents, belied a lack of necessary internal self-scrutiny with UNMIK. An Expert commented on the apparent sluggishness of UNMIK to react to the health hazard created by lead pollution in an IDP camp. Another Expert criticized the apparent absence of investigations by UNMIK of missing-persons cases, which were reportedly widespread, if not systematic.
Responses by Delegation to Oral Questions
The delegation repeated that UNMIK was not here because Serbia was a party to the Covenant, but because, under Security Council resolution 1244, it had a duty to promote and protect human rights. Regarding those questions for which the delegation had said no data were available, the delegation would contact the specific agencies or programmes concerned and request written answers to those questions.
Concerning the Ombudsperson institution and the transfer of authority to a new reformed Ombudsperson instrument under the authority of the Provisional Institutions of Self-Government (PISG), the delegation said that was part of UNMIK’s obligations under the Security Council resolution establishing it, which required the gradual transfer of authority to local institutions. The transitional arrangements in place still allowed the present Ombudsperson to look into any complaints against UNMIK. So there was no protection gap before the Human Rights Advisory Panel assumed all its responsibilities.
Regarding mechanisms for reviewing police detentions, the delegation noted that thankfully in Kosovo there were numerous non-governmental organizations, as well as the Organization for Security and Cooperation in Europe, which had full access to those facilities and could perform oversight functions.
It was true that UNMIK had very little effective control in the northern municipalities of Kosovo, and here the international community’s help was needed, as those competing authorities were responsible for a human rights protection gap in the north. The delegation observed that the situation in Mitrovica was also part of the decentralization that was part of the final status talks process.
The incidence of domestic violence was higher in rural communities than in urban ones and the Kosovo Police Service had formulated an outreach programme for rural women to address that, for example by having mixed gender community patrols in villages. The level of unemployment of women in rural communities was also much higher than in urban areas, in particular among minority women, and microcredit schemes were being implemented to help them. So far, however, there were no monitoring mechanisms to evaluate the success of those measures.
Detainees’ rights in Kosovo were comparable with those guaranteed in European countries, the delegation said.
Concerning UNMIK involvement in human rights mechanisms of the Provisional Institutions of Self-Government (PISG), the delegation said that there was a human rights expert programme in the municipalities, where senior human rights advisers had been placed to work with the local authorities. Human rights advisory teams had also been deployed within the PISG ministries, as well as the Prime Minister’s office, to work with them on human rights issues and policies, and there were individuals working with the PISG on human rights legislation.
Further Oral Questions and Comments by Experts
An Expert said he would like to know how the UNMIK report was prepared and why the Ombudspersons comments had been totally disregarded. Regarding the transfer of the Ombudsperson functions to the Human Rights Advisory Panel, the delegation’s response was unsatisfactory, not because it was transferring authority to local authorities, but because it was transferring human rights oversight functions from an independent office to a dependent one.
In a similar vein, an Expert expressed her great dissatisfaction with the delegation’s response that oversight functions could be provided by non-governmental organizations or other institutions such as the Organization for Security and Cooperation in Europe. It was not right that UNMIK should rely on organizations such as Human Rights Watch or Amnesty International to fulfil an obligation that it needed to provide itself.
Freedom of Movement
Addressing the causes of the low rate of return of persons belonging to Serb or other minorities, the delegation said that in its view, it was a very complex issue; a combination of socio-economic, security and political factors were to blame. Unemployment remained high. And, although overall security and freedom of movement had improved, there were still strong perceptions to the contrary. Moreover, following the March 2004 riots, the process of reconstruction and restitution of residential property was still incomplete.
To respond to that situation, the delegation said that central and municipal structures had pledged their commitment to the return process. Municipal return strategies had also been adopted in most municipalities, with mixed results. Notwithstanding that, municipal working groups and task forces on returns had been effective in the majority of cases and municipal return offices had been established in most municipalities. In 2003, two programmes – Government Assistance to Returns, a mechanism for organized returns, and the Rapid Response Return Facility, which provided housing to specific categories of returnees – were developed in agreement between UNMIK and UNDP. The Sustainable Partnership for Assistance to Minority Returns in Kosovo was introduced in 2005, bringing the full spectrum of assistance for returns under one umbrella. To ensure the sustainability of returns, those programmes jointly provided housing reconstruction assistance to 306 displaced families, income generation grants to 164 households, and 25 training programmes were arranged for minority communities.
The delegation highlighted that a recent UNMIK assessment indicated that ethnically motivated crimes had continued to decline throughout 2006. The recently promulgated regulation on the framework and guiding principles of the Police Service ensured the protection of minority communities by creating increased movement and security. Community policing tasks had been transitioned in 2006 from international police forces to the Kosovo Police Service, which had so far achieved positive results. Escorts of minority movement with Kosovo that had previously been conducted by KFOR had largely been transferred to the Police Service.
Addressing the issue of removing temporary occupants from the homes and agricultural lands of persons who had been displaced during the armed conflict or during the ethnic tensions of March 2004, the delegation said that the Kosovo Property Agency had been set up to begin the claim filing process with regard to property claims, but that it was too soon to analyse its effectiveness. A new Memorandum of Understanding had been signed between the Police and the Kosovo Property Agency that outlined their respective responsibilities in securing the enforcement of eviction orders. The Ministry of Environment and Spatial Planning, with the support of the OSCE had conducted a Kosovo-wide information campaign against illegal occupation in 2005 aimed at raising public awareness.
Turning to concrete measures to implement return strategies and policies, the delegation said that during 2005 and 2006, the UNMIK Office of Communities, Returns and Minority Affairs organized a series of consultations with international organizations, local government institutions, non-governmental organizations and other relevant actors to retool the 2003 strategy on returns and communities, which resulted in a draft set of policy recommendations and an updated Manual for Sustainable Return. The new policy, which was adopted by the Provisional Institutions of Self-Government, sought to increase IDP access to assistance to return to Kosovo as well as to simplify the procedure for provision and delivery of social services to returnees.
Right to a Fair Trial
A number of oversight bodies had been established since 1999 to increase the functionality and independence of the judiciary, namely, the Joint Advisory Council on Provisional Judicial Appointments (1999); the Advisory Judicial Committee (1999); the Kosovo Judicial and Prosecutorial Council (2001); and the Kosovo Judicial Council (2005). All had been involved in the appointment process of judges and prosecutors. The last three bodies named operated under their own rules and procedures. The Kosovo Judicial and Prosecutorial Council was the first body to be given disciplinary powers without referral to the Special Representative of the Secretary-general (SRSG), which were restricted to measures short of dismissal, which remained the SRSG’s prerogative.
International judges and prosecutors did not have an independent professional oversight body, but their conduct was regulated internally within existing United Nations employee structures, the delegation said.
New qualification standards in September 1999 had provided a transparent set of criteria and required judges to be of a high moral character, have no criminal record and no previous involvement in political parties or discriminatory practices. However, the demand to re-establish a functioning judiciary after 1999 meant that despite those clear standards the competence and professionalism of judges varied. The task of appointing judges had been especially difficult at the beginning of UNMIK’s mandate, given the lack of records then available. In October 2000 the OSCE had discovered evidence to suggest that three judges lacked the necessary qualifications to hold office, which had led to their contracts not being renewed later that year.
The delegation pointed out that the SRSG retained the power to dismiss judges and the judicial disciplinary bodies recommended judges’ dismissal. Over the years, that had expanded to allow individuals to complain and the professional regulatory bodies to initiate disciplinary proceedings at their own discretion. An April 2006 UNMIK regulation required the Judicial Council and the Kosovo Assembly to ensure that the judiciary and the prosecution service reflected the ethnic character of Kosovo. A 2002 Joint Declaration between the Deputy SRSG for Police and Justice and the Serbian Minister of Justice sought to encourage more Kosovo Serb applicants by offering assistance to Kosovo Serbs outside the region.
Salary levels for judges and prosecutors had been increased, the delegation said, but it was an issue that still had to be rectified until they could find the proper level. The report listed the salaries for members of the judiciary. It was a difficult issue that UNMIK was addressing jointly with the PISG.
Regarding measures to ensure accessibility of the justice system for minorities, especially Serbs and Roma, the delegation observed that judicial understaffing was a problem that could disproportionately impact on minority communities. Two new municipal courts had been established to service the Serb community.
The delegation said that, as of May 2006, there were eight Court Liaison Offices providing assistance over two thirds of Kosovo. Those were primarily established in minority areas to promote access to justice. They provided local contact points for information on courts and legal services to members of the local community who for security reasons were reluctant to visit the areas where the courts were located.
On the issue of witness protection, a number of measures had been adopted: pre-trial testimony was allowed to be used or given out of court if witnesses were unable to attend; specialist witness protection measures were introduced in 2001; and there was a witness protection unit now operating in Kosovo. A common complaint, the delegation pointed out, was the lack of protection options due to the size of Kosovo and the reluctance of other countries to relocate witnesses from Kosovo.
The delegation noted that certain reforms had been made to help individuals bear court costs. In civil proceedings, under the Regulation for Legal Aid court, fees and expenses would be waived for legal aid clients. That regulation aimed to provide legal advice and assistance in all civil, criminal and administrative matters without discrimination. Parties were guaranteed the right to use their own language before the courts, and language translation had to be provided at the court’s expense.
The delegation said that reports that the UNMIK Department of Justice had instructed the courts not to process compensation claims related to property damages incurred after 1999, which were predominately lodged by Serbs, Roma and Ashkali minority groups, were incorrect. After the March 2004 riots the Department had requested the courts to temporarily suspend proceedings owing to security concerns for claimants and the extra resources required to deal with the large volume of cases.
Judicial recruitment was continuing in order to increase the number of judges, but, the delegation admitted, judicial understaffing was still an issue. There were no special measures in place to increase the number of forensic experts and the preparation of expert reports had caused delays in numerous cases. There was an insufficient body of experts in the country to meet the courts needs and the low expert fees were also a disincentive for outside experts. The delegation pointed out that the Kosovo Judicial Council now had the responsibility for administering the courts and it was expected they would assess the current requirements and the allocation of court resources, including for judges.
Timescales and points of review in criminal proceedings had been introduced to allow the courts to monitor the expediency of the legal process. In April 2004 time limits for the production of a written judgement after a verdict were increased to 15 days for defendants in remand, and 30 days in other cases. In Mitrovica District Court an indictment was filed in August 2000, but a trial date was not set until January 2005, and there were other such cases. In 2004 the majority of municipal courts were experiencing backlogs in civil and criminal cases. In 2003, only 167 of the 795 cases brought before the municipal courts were completed.
Freedom of Opinion and Expression; Incitement to Racial Hatred
Regarding measures taken to protect minority places of worship and ensure safe access to them, the International Security Force in Kosovo (KFOR) rules of engagement were in place to ensure a safe and secure environment across all areas of Kosovo. Minority areas were guarded by KFOR personnel to ensure they remained unmolested. The delegation affirmed that there had been no major incidents regarding any minority sites since those in March 2004.
Turning to the media and regulation of language inciting racial violence, the delegation said that in 2000 the office of the Temporary Media Commissioner had been given the authority to impose sanctions on broadcast media that violated a code of conduct for the broadcast media in Kosovo, and it also contained a special provision for sanctions when the broadcast of personal details posed a serious threat to a person’s life, safety, or security. In parallel, a similar regulation of print media was promulgated, also in 2000.
On 9 December 2004 the Temporary Media Commissioner reached settlements with two commercial broadcasters with respect to their broadcasting in the March 2004 events. In those settlements TV-21 and KTV had recognized that they had failed to comply with the Code of Conduct and agreed to allocate €5,000 and €10,000, respectively, to staff training and professional development, including reporting on conflicts. Similarly, the Commissioner reached a settlement with the public broadcaster RTK for its coverage of March 2004 events and, among others, RTK agreed to allocate €100,000 on focused training.
Right to Take Part in the Conduct of Public Affairs
The delegation cited a number of statistics regarding the make up of judicial and prosecutorial posts in 2006, disaggregated by gender and ethnicity. It was noted that women held 26 per cent of those posts, whereas ethnic minorities held 9 per cent. Civil servant statistics from 2005 showed that women made up 35.63 per cent of the civil service staff for all levels; Serbs, 8.18 per cent; and those of Turkish ethnicity, less than 1 per cent.
Right to Be Equal and Equality Before the Law
UNMIK had accepted external scrutiny of the situation of minorities by entering into an agreement with the Council of Europe on 23 August 2004. UNMIK had engaged to report to the Council of Europe on that situation, which it did in June 2005. The report could be found on the Council’s website. A delegation of the Advisory Committee had visited Kosovo from 11 to 15 October 2005 to obtain supplementary information and had adopted an opinion on 25 November 2005, which was incorporated in a resolution in June 2006, containing conclusions and recommendations. UNMIK was actively preparing a strategy to comply with those recommendations.
Rights of Persons Belonging to Minorities
The Ministry of Education, Science and Technology had started the education reform process in the academic year 2002/03, and the educational system was already reformed up to the ninth grade. At the same time, the Ministry had begun drafting new curricula. Those reforms were supported by all communities, with the exception of the Serbian one. In Kosovo today there were 28 primary and 14 secondary mixed schools, in which Albanians, Bosnians, Turks, Roma, Ashakali and Egyptian communities were learning together and among whom relationships were reported to be good.
The delegation noted, however, that large numbers of Roma children lived in settlements that were far away from schools and had not secured public transportation. Their parents could not afford to buy textbooks and school materials, and some did not have clothes to go to school. Language barriers were also frequent, as many Roma children of school age could not speak Albanian.
Dissemination of Information Relating to the Covenant and the Optional Protocol
The delegation said that training sessions regarding the international human rights instruments applicable in Kosovo were taking place on a regular basis in Kosovo. The Kosovo Judicial Institute was providing continuous education to judges and prosecutors.
The present report had been compiled by UNMIK Pillar III and the Organization for Security and Cooperation in Europe, in coordination with the UNMIK Office of the Legal Adviser, based on inputs received from various UNMIK offices, the Provisional Institutions of Self-Government, the International Security Force in Kosovo and following consultation with representatives of the Ombudsperson Institution and civil society.
Further Oral Questions and Comments Posed by Experts
An Expert asked what instruments were in place to make sure that if there were a new outbreak of ethnic violence such as in 2004, proper protections were in place.
An Expert voiced the opinion that everyone appeared to be waiting for the final status of Kosovo to be determined and were frozen. She reiterated that UNMIK had an affirmative duty to protect minorities.
An Expert wanted to know more about what UNMIK was doing to guarantee freedom of movement within Kosovo. He also wondered why, in the ethnic breakdowns, there were no categories for Roma, Ashkali and Egyptian minorities in the statistics concerning civil service, judiciary and prosecutorial staff, for example? He would guess that was because those groups were effectively excluded from all access to public life.
Response by Delegation
Responding to question on low returns, the delegation said that for many, many reasons the results had been poor. They would not go into all of those reasons here, but the security situation was certainly a major factor. The events of 2004 had destroyed many beginnings and many initial successes. UNMIK and KFOR had drawn the necessary lessons from that experience and had taken measures and established cooperation so that the breaches of security that had occurred in March 2004 would not recur.
The residential property restitution and the issue of property rights was another essential element for returns. For that reason, UNMIK had been vigorous in that area and had established the Kosovo Property Agency. A rental scheme was in the process of being developed so that property owners whose land had been occupied could at least have some benefit from it. Also, protocols had been signed between UNMIK and Belgrade to encourage returns.
The independence of the judiciary was critical, the delegation affirmed. There were, however, jurisdictional problems. UNMIK was a United Nations body, but also an interim administration and it was sometimes difficult to wed those two concepts. It was hard to have United Nations staff, from all over the world, held accountable to local judges. That did not mean that they were not held accountable or that there were no oversight procedures.
Finally, the delegation said that it was unfair to say that UNMIK was in a state of suspended animation pending final status determination. He had personally witnessed the dramatic transformation of Kosovo from a total lack of government to the institution of free and fair elections, and the establishment of municipal structures and national institutions of self-government that were largely democratic and had detailed competencies. He felt that UNMIK had prepared Kosovo for final status and that the huge effort the international community had made towards that effort merited a greater appreciation, even if there was certainly more to be done.
Preliminary Remarks
CHRISTINE CHANET, Chairperson of the Committee, said she wished to very warmly thank the delegation. Whatever the differences in opinion had been, the ideas on both sides regarding the future of Kosovo had all helped the Committee to have a better idea of the human rights situation there and to express its views. One thing all had agreed on was that all the people of Kosovo were entitled to their rights under the Covenant.
On the positive side, Ms. Chanet said, it was quite clear that since UNMIK had been established new structures had at least been sketched out and considerable work had been done in that direction. Perhaps they were asking a lot of the international community in this exercise. Of course the task was an enormous one and it was not possible to meet all their demands.
Ms. Chanet agreed, however, with the view of many Experts that while the report had contained a number of laws and regulations, there was a gap between those legal regulations and the actual reality on the ground of guarantees for the population of their rights under the Covenant. Nevertheless, she welcomed the frankness of the delegation on issues such as gender discrimination and the confusion of legal regimes that prevailed in Kosovo.
Ms. Chanet said that other issues of concern remained the transfer of the Ombudsperson’s authority to the Human Rights Advisory Panel, in particular regarding oversight of UNMIK personnel, and the lack of oversight for international judges. International judges were appointed by and responsible to the same body. A real mechanism of judicial oversight was needed here; the word “international” was not sufficient to guarantee their independence. Among other areas of concern were impunity, restrictions on movement, delays in court and legal procedures, and conditions of detention – which the delegation had acknowledged were deplorable by saying they would be better in 2007. The delegation had also been very frank about the lack of control over the north of Kosovo, where apparently human rights were being trampled.
It had to be acknowledged that six years was not a long time. There was also the issue of a boycott by the Serb population of the new institutions. But, Ms. Chanet observed, UNMIK also had the power to shape attitudes and perhaps to avoid a boycott by ensuring greater security for that community.
For use of the information media; not an official record
CT06006E