What do the observations of the lawyers of the Parliamentary Assembly of the Council of Europe say about Kosovo?
The report from the Council of Europe's legal experts on the alignment of Kosovo's legal system with CoE standards indicated that Kosovo, regarding the fulfillment of key CoE principles and standards - democracy, human rights, and the rule of law, showed serious deficiencies, Kosovo Online interlocutors assessed. They state that the document is not political but represents legal expertise, serving as a kind of guideline for developing democracy in Kosovo.
Legal experts from the Parliamentary Assembly of the CoE visited Kosovo in September, holding discussions with representatives of the authorities, civil society, and the international community. The result of this visit was a 33-page report, part of the consideration process for Kosovo's application to become a member of the Council of Europe, submitted on May 12, 2022.
As previously reported by Kosovo Online, the Key Conclusions of this document emphasize that Kosovo's legal framework has been heavily influenced by the international community. While this influence contributed to the general alignment of legal provisions with international standards, it "does not mean that there are no problems regarding the implementation of standards in practice".
Although Kosovo is recognized as a "functional parliamentary democracy", the report concludes that the complete independence of the judiciary is not always fully respected, and there is concern about the tendency to excessively use special police forces in northern Kosovo. To improve the situation, a set of recommendations is provided, including that the authorities should abandon their opposition to the establishment of the Community of Serb-majority Municipalities, continue efforts in judicial reform and the fight against corruption and organized crime, refrain from using special police forces in the north for regular police tasks, and ensure that such forces are deployed only where necessary and in close cooperation with KFOR and EULEX.
Vladan Petrov, a Professor at the Faculty of Law in Belgrade, a judge of the Constitutional Court, and a member of the Venice Commission said for Kosovo Online that the report of legal experts from the Council of Europe on the compliance of Kosovo's legal system with CoE standards had indicated serious deficiencies in Kosovo regarding the fulfillment of key principles and standards of the CoE, namely democracy, human rights, and the rule of law.
Petrov says that this report is a legal expertise and not a political document, emphasizing that it is written very objectively and balanced.
He also points out, as a law professor, that he believes this document will be one of the key factors leading to the decision that Serbia considers the only correct one, which is that Kosovo cannot become a full member of the Council of Europe.
"In that report, especially in the conclusions, eminent legal experts specifically point out the following: there is indeed, especially in the north of the so-called Kosovo, a great fear among the non-Albanian population, insecurity, the involvement of Special Forces in regular activities that should be carried out by ordinary police, no cooperation with KFOR and other relevant institutions.
It is also noted that the system of Kosovo is such that some elementary principles of the rule of law are not respected, for example, the political authorities of the so-called Kosovo do not respect the decisions of their own courts, including the decisions of the Constitutional Court. It mentions those related to the property of the Visoki Decani Monastery. This is clearly stated in this report, and a recommendation is given because lawyers cannot order, they can only state and recommend that the implementation of that decision start as soon as possible", Petrov says.
He points out that one of the authors of the report, Thomas Markert, is a former Director and Secretary of the Venice Commission of the Council of Europe.
"He is an excellent lawyer who dealt with the dissolution of the former Yugoslavia. This is a legal expertise, so it is not a political document, and precisely because of that, it has been shown to be very objectively and balancedly written. It has been shown that the so-called Kosovo, which last year submitted an application regarding compliance with the key principles and standards of the Council of Europe, namely democracy, human rights, and the rule of law, shows serious deficiencies", Petrov adds.
As he believes, a very important message from the report is that the establishment of the Community of Serb-majority Municipalities must be started as soon as possible, and Council of Europe lawyers, as he emphasizes, have clearly shown what kind of relationship they have with Kosovo when they wrote its name with an asterisk in the report, which "clearly shows that they consider it an entity, not a state".
"This report is in our favor and shows what I have been saying for years as a law professor. Kosovo is an entity that is on artificial life support. Certain international factors give it this artificial life support, but internally Kosovo is an entity that does not, in a substantive sense, fulfill the basic principles of democracy, human rights, and the rule of law. What should we do next? We need to carefully analyze this report because all such reports must be read carefully, from various perspectives, every word, and even the arrangement of the key recommendations given in the final part must be taken into account. But, in principle, when all this is analyzed well, we should continue with the policy we continuously pursue, which is the policy of insisting on fulfilling the obligations of the First Brussels Agreement. After that, elementary conditions for further negotiations will be created. It is good that such a respectable institution as the Council of Europe, which is not a political institution, has assessed the situation in Kosovo and Metohija in this way, thereby giving the right to the state of Serbia to first arrange the lives of the Serbs and non-Albanians in Kosovo, which is currently not at the level of the rule of law, human rights, and democracy", Petrov emphasized.
Regarding the fact that lawyers noted that the Kosovo authorities favored the rapid and strong use of Special Forces even if there was a significant risk that the use of force would lead to mass violence and bloodshed, Petrov emphasizes that this is unacceptable.
"If you use Special Forces for regular activities, maintaining public order, it means that the authorities in that territory are applying brute force for something they absolutely must not do. We have a disorderly situation that is absolutely contrary to the basic and fundamental principles of security and the normal life of all people in the so-called Kosovo. Therefore, the situation in Kosovo becomes excessively unbearable, not only for the Serbs but primarily for the Serbs in northern Kosovo. This is the expression used by legal experts in the report", Petrov states.
Petrov believes that the views of the Council of Europe lawyers should be a key guideline when deciding on Kosovo's request to become a member of the Council of Europe.
"As a law professor, I can only express the belief that this legal report will be influential in making the final decision. I believe it will be one of the key factors that will lead to the decision we consider the only correct one, which is that Kosovo, as an entity, cannot become a full member of the Council of Europe", Petrov concluded.
University Professor Nexhmedin Spahiu, commenting on the report of legal experts from the Council of Europe on the compliance of Kosovo's legal system with the CoE standards, stated for Kosovo Online that this report was a guide for developing democracy in Kosovo.
The report recommends, among other things, that the authorities of Kosovo refrain from using special police forces in northern Kosovo for regular police tasks, fully respect the independence of the judiciary, continue efforts in combating corruption and organized crime, promptly implement the Constitutional Court's ruling on the case of the Visoki Decani Monastery, and abandon opposition to the establishment of the Community of Serb-majority Municipalities.
"Things cannot be fixed solely by special units; it is necessary to work on the development of society, integrate ethnic minorities into Kosovo society, and develop democracy. Security and peace cannot be ensured in the long run only through the use of special units", Spahiu says
Speaking about whether there will be any changes on the ground after the report from the legal experts of the Council of Europe, Spahiu is not optimistic, as he believes that many officials in leadership positions lack sufficient knowledge.
"I believe there will be some changes, but our society is very difficult to move because personnel in positions within institutions lack knowledge and experience. Our education system does not produce adequate personnel for functions, and this is evident from the results of the PISA test, where Kosovo ranks fourth from the bottom. It's a very ugly picture. That's why positive things in Kosovo are moving very slowly", Spahiu says.