Report from the CoE legal experts: Kosovo violates the rule of law in the case of Visoki Decani; no willingness to establish the CSM

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In the Report on the Compliance of Kosovo's Legal System with the Standards of the Council of Europe, Kosovo is portrayed as a party that does not respect court decisions or international agreements. The document was compiled by Council of Europe experts who were in Kosovo from September 24 to 27, and it describes setbacks in the rule of law, Koha writes.

The report notes that although political institutions have shown greater determination in combating corruption and organized crime, they do not always respect the independence of the judiciary, and there is a worrying tendency towards the excessive use of special police forces in northern Kosovo.

In the section related to tensions in the north, which culminated in incidents in Banjska, Kosovo is urged to refrain from police actions that could lead to larger conflicts. According to the document, it was only thanks to KFOR that the greatest escalation of the situation could be avoided.

"In the case of violent and unlawful protests or roadblocks, Kosovo authorities favor the rapid and violent use of Special Forces to establish public order, even if there is a high risk that the use of force by the police will lead to violence and mass bloodshed. Only thanks to KFOR's strong stance, it has become possible to avoid further escalation of violence in recent cases", the document states.

The Government does not want to establish the CSM

In the part dedicated to the dialogue, the document mentions the Community of Serb-majority Municipalities and states that there is currently no will for its implementation.

"The Court concluded that the proposed legal framework 'did not fully meet constitutional standards'. However, the Court, in principle, did not exclude the possibility of such communities. Kosovo politicians have used this judgment to declare that the establishment of such a community is inherently unconstitutional. At the time of our visit, it seems that the current Government does not want to establish such a community", the Report states.

Although the Court was critical of the specific document submitted to it, as added in the report, it explicitly stated "that the Association/Community of Serb-majority Municipalities would be established as provided for in the First Agreement, ratified by the Kosovo Assembly.

Non-implementation of the decision on Visoki Decani is a violation of the rule of law

The report mentions the non-implementation of another decision of the Constitutional Court - regarding the property of the Visoki Decani Monastery.

"To date, the authorities have not implemented the court decision dating back to 2016. The Court decided that 24 hectares of disputed land belong to the Visoki Decani Monastery. Politicians criticized this judgment, and despite repeated calls from the international community, it has not been implemented. This is a clear violation of the rule of law. The authorities of Kosovo must implement the decision of the Constitutional Court without further delay", it adds.

The resignations of the Serbs in the north

While the resignations of the Serbs from Kosovo institutions, including the police, judiciary, and prosecution, are described as problematic, the report welcomes the fact that these resignations were not approved by the Judicial Council and the Prosecutorial Council, leaving the opportunity for the Serbs to return to their positions.

The report also mentions the decisions of the Kosovo Government from August of last year regarding the expropriation of land in northern Kosovo, which prompted complaints from the Serbs.

"Representatives of the international community, including the OSCE, EU, EULEX, and the USA, have expressed deep concern about these decisions because the procedure that followed was not in accordance with the laws and regulations of Kosovo. Among other things, the decisions did not establish, as required by Article 44 of the Constitution, the public purpose or public interest for which these expropriations are necessary. However, it is generally assumed that the intention is to build police stations on these properties. This approach is not in line with the rule of law and is likely to undermine trust between the Serbian community and the institutions of the Kosovo Government. Authorities should also make greater efforts to communicate to the wider public the reasons for expropriation", the report states.

A significant problem, it is noted, is the protection of witnesses in sensitive cases such as war crimes handled by the Special Courts in The Hague.

Regarding the fight against crime and corruption, the Report praises Kosovo institutions for some of the actions taken. It mentions that Kosovo's position in the Corruption Perceptions Index by Transparency International has improved from 104th to 84th place, but it is considered insufficient.

"There is a clear need for further strengthening of various institutions and bodies combating corruption, including additional resources. Kosovo authorities must continue their efforts in combating corruption and organized crime and ensure the proper implementation of new legislation in this area", the document emphasizes.

On May 12, 2022, Kosovo submitted a membership application to the Council of Europe.