Judgment against KLA leaders—can Pristina challenge the jurisdiction of the Specialist Chambers?

The convictions of the former KLA leaders last week have caused concern in both Pristina and Belgrade. While various initiatives in Pristina are seeking to challenge the jurisdiction of the judicial institutions based in The Hague, Belgrade has warned that the final word could rest with the Constitutional Court, which some members of the public in Kosovo expect to review the decisions of the Specialist Chambers. Kosovo Online interlocutors point out that judicial institutions cannot be abolished or altered simply because one of the parties is dissatisfied with the outcome of proceedings, including through decisions of the Assembly, and that the Constitutional Court does not act as a court of further appeal reviewing judgments of the Specialist Chambers.

Written by: Ivana Sanjevic

Dissatisfied with the convictions of the former KLA leaders for war crimes, the Democratic Party of Kosovo yesterday submitted to the Kosovo Assembly a Draft Law amending and supplementing the Law on Specialist Chambers and Specialist Prosecutor’s Office.

The party’s President, Bedri Hamza, explained that the proposed amendments were intended to modify the legal framework governing the Specialist Chambers and Specialist Prosecutor’s Office by limiting the Chambers’ jurisdiction to the specific allegations contained in Dick Marty’s report, while cases falling outside that jurisdiction would be transferred to Kosovo.

Hamza said that the Assembly should assume its constitutional and legislative responsibility by seriously reviewing the statutory provisions governing the work of the Specialist Chambers.

“The Assembly has a responsibility to review a law when it considers that the law no longer reflects the purpose for which it was adopted. This draft law does precisely that, because it requires charges to have a specific connection with the allegations for which this Court was established. Not a general connection, and not interpretations without limits. The mandate cannot be expanded simply because an event occurred during the war. There must be a clear connection with the mission for which this mechanism was established. The draft law provides that, when a case falls outside this jurisdiction, it should be transferred to Kosovo together with the case files, evidence and materials. Justice continues, but it continues where the law says it should,” Hamza said.

According to him, the proposed amendments would not abolish the Specialist Chambers but restore their mandate to its original purpose.

“They would establish that the Court is to deal with the specific allegations for which it was created and which are connected with Dick Marty’s report. For other war crimes and offenses that are not directly connected with those allegations, responsibility would be assumed by Kosovo’s judicial institutions. No case would be closed merely because it falls outside the jurisdiction of the Specialist Chambers. If a case does not fall within their jurisdiction, it would be transferred to Kosovo. The draft law does not create a legal vacuum,” Hamza stressed.

“A farcical understanding of the rule of law”

Attorney Novak Lukic told Kosovo Online that he had not seen the Democratic Party of Kosovo’s initiative to amend the Law on Specialist Chambers, but said he did not believe there was any legal mechanism through which an initiative or decision of the Kosovo Assembly could challenge the jurisdiction of those institutions.

“To think that, in any domestic legal system, let alone the international legal system, a court can issue a decision, someone dislikes that decision and therefore wants to abolish the court—that is a farcical understanding of the rule of law,” Lukic said.

He pointed out that such an initiative could not affect the ongoing proceedings against Thaci and the other former KLA leaders, “if that was the intention.”

Lukic stressed that the initiative was primarily a political matter and that, if adopted by parliament, it should be assessed by those involved in establishing the Specialist Chambers, namely the European Union.

“What the consequences would be is a matter of political assessment, particularly for those who reached the agreement with the Kosovo authorities. But to abolish it now because someone is dissatisfied with a decision is absurd,” Lukic reiterated.

Politics before law

Attorney Fehmije Gashi Bytyqi agreed that political initiatives could not affect decisions already handed down by the Specialist Chambers in The Hague and that the proper avenue for seeking to change them was the appeals process.

“These party initiatives will have no impact whatsoever on the decision already delivered by the Court. The only legal and genuinely effective avenue is for the Defense to strengthen its case with compelling arguments and file an appeal in order to challenge the judgment before the Court of Appeals and seek to have it changed in their favor,” Gashi Bytyqi said.

She assessed that abolishing the Specialist Chambers would require numerous procedures, stressing that the Court did not operate like an ordinary institution.

“The Law on the Specialist Chambers in The Hague is not like an ordinary law that the Assembly can simply amend. There was also an amendment to the Constitution, and abolishing the Court is an extremely serious matter that could have consequences not only for the institutions but also for Kosovo itself,” Gashi Bytyqi said.

Appeals up to the Constitutional Court

In parallel with the PDK initiative, attorneys for the former KLA leaders have announced appeals against the first-instance judgments convicting Hashim Thaci, Jakup Krasniqi, Kadri Veseli and Rexhep Selimi of war crimes.

Serbian President Aleksandar Vucic and Director of the Office for Kosovo and Metohija Petar Petkovic have pointed out that there are at least two further instances before which the judgment against the KLA leaders could be challenged. The second-instance proceedings are estimated to potentially last up to a year, after which a referral to the Constitutional Court could follow.

“We must bear in mind which court convicted Thaci, Veseli, Selimi and Krasniqi. This is a so-called Kosovo court—we are not talking about an international court. These are Specialist Chambers established by the so-called Pristina Assembly in 2017, but relocated to The Hague for security reasons,” Petkovic said.

Attorney Dragan Pasic explained to Kosovo Online that the first-instance body was the Trial Panel that convicted the former KLA leaders, including Hashim Thaci, followed by panels of the Court of Appeals and the Supreme Court, while the Specialist Chamber of the Constitutional Court in The Hague represents the highest constitutional instance.

“It does not serve as a court reviewing judgments on their merits, but determines whether final judgments have violated the Constitution of the so-called Republic of Kosovo,” he said.

Pasic added that it was important to emphasize that the Specialist Chamber of the Constitutional Court, which is seated in The Hague, is not part of the regular Constitutional Court of Kosovo. Consequently, no judicial institution based in Kosovo can influence the judicial institutions relocated to The Hague.

“They have complete autonomy in their work and decision-making,” Pasic stressed, noting that all the judicial panels based in The Hague are composed of international judges.

Attorney Novak Lukic also recalled that the Specialist Chamber of the Constitutional Court had, even before the trial of the former KLA leaders before the Kosovo Specialist Chambers in The Hague, upheld the institution’s jurisdiction over the criminal offenses covered by the indictment against Hashim Thaci, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi.

He added that the defense of former Kosovo President Hashim Thaci had already filed referrals during the pre-trial phase challenging the jurisdiction of the Specialist Chambers, and that all such challenges had been rejected.

EU consistently supports the Specialist Chambers

European Commission spokesperson Christian Wigand conveyed the European Union’s position that the Kosovo Specialist Chambers administer justice through fair, impartial and independent judicial proceedings based on the principle of individual criminal responsibility, recalling that persons convicted at first instance have the right to appeal their convictions.

He added that the EU did not comment on individual initiatives but continued to consistently support the Specialist Chambers.

“The Kosovo Specialist Chambers are an independent judicial institution established by decisions of the Kosovo Assembly in 2014 and 2015, operating within Kosovo’s legal system and consistently supported by the EU. Their work is important for ensuring accountability and delivering justice for victims and their families from all communities in Kosovo,” Wigand said.

The summary of the judgment states that the Trial Panel found all four—Thaci, Veseli, Krasniqi and Selimi—criminally responsible for the war crimes of arbitrary arrest and detention involving 385 persons, cruel treatment involving 49 persons, torture involving 303 persons and murder involving 96 persons.

Despite everything, Pasic expects the Court of Appeals Panel to uphold the first-instance judgment in the event of an appeal.

“The Court of Appeals has two other options: it can reverse the first-instance judgment and acquit them, or it can uphold an appeal by the Prosecution and convict them of the offenses of which they were acquitted at first instance, namely crimes against humanity,” Pasic concluded.