Ombudsperson Naim Qelaj has confirmed that he is analyzing a request submitted by civil society organizations, intellectuals and human rights activists, who are calling for the Law on Specialist Chambers and the Specialist Prosecutor’s Office to be referred to the Constitutional Court to assess whether the court in The Hague acted beyond its powers in the trial of former leaders of the Kosovo Liberation Army.
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During an interview with Ekonomia Online, Qelaj said it was still too early to determine his position on the matter, but stressed that he would act in accordance with his constitutional and legal mandate, paying particular attention to protecting fundamental human rights and the interests of justice.
“A few days ago, we received a request from a considerable group of civil organizations, intellectuals and human rights activists. We reviewed and analyzed the request and also held a meeting to discuss the concerns raised by these individuals. We are currently assessing it. As Ombudsperson, I always act within my constitutional mandate and the powers granted to me by law, with heightened attention to respecting human rights, but I think it is still too early to say what my position on this request will be. When it comes to the interests of justice and respect for human rights, I am ready to act in the interest of these two issues,” Qelaj declared.
He also spoke about the Ombudsperson’s report concerning proceedings before the Specialist Chambers, explaining that the institution he heads does not assess court decisions, but rather the proceedings and compliance with the standards for a fair and impartial trial.
“The Ombudsperson does not assess court decision-making at any level, including the Specialist Chambers, but the report we published focuses on the proceedings taking place there and on ensuring the standards for a fair and impartial trial, standards that Kosovo applies in its legislation. Before the judicial decision was announced, the report identified many concerns regarding the functioning of this court and the guarantee of a fair trial, starting with a lack of transparency, a lack of accountability, and the fact that the court has no connection whatsoever with the justice system or the state of the Republic of Kosovo,” he said.
Qelaj also mentioned the concerns identified in his institution’s report, including the length of pretrial detention and the way evidence from Serbia was administered.
“Pretrial detention lasted beyond the standards established by the European Court of Human Rights, for an excessively long period. Evidence from Serbia was administered without a verification filter, despite the fact that Serbia holds hostile positions toward Kosovo and the Kosovo Liberation Army, some of whose members are among those indicted in The Hague. When a decision is issued that does not meet the public’s expectations, these concerns raised in advance acquire another dimension and legitimacy. We cannot expect the results of a process with so many problems to be decisions that the public trusts. The public reaction has led to concrete actions being taken by the Assembly of the Republic of Kosovo as well,” Qelaj declared.
Regarding the amendments approved by the Assembly to the Law on Specialist Chambers, Qelaj said that the Assembly’s right to adopt and amend laws should not be questioned, but raised questions about the legal effect of these amendments and their compatibility with Kosovo’s international obligations.
“The Assembly’s right to enact and amend laws should never be disputed. However, with regard to the latest law amending the Law on Specialist Chambers, we must view it from another perspective: to what extent will this law have legal effect in these proceedings, bearing in mind that we are dealing with a specific amendment to the Constitution, namely constitutional provisions that determine the form of establishment and the manner of operation of these courts,” he said.
Qelaj stressed that assessing whether the trial was unfair falls within the jurisdiction of the Specialist Chambers’ Court of Appeals and that decisions must be respected until a decision is issued by the next instance.
“All institutions of the Republic of Kosovo must bear in mind that the battle for justice takes place in court and that all decisions, whether acceptable or not, must be respected until a decision is made by the next-level court, namely the Appeals Court. If we start from the conclusion emerging from the public reaction that the trial was unfair, only the Specialist Chambers’ Court of Appeals can determine this, regardless of the doubts over whether this court can surpass the minimum threshold of credibility,” Qelaj declared.
He also called for greater oversight and accountability from the Specialist Chambers, as well as monitoring by international mechanisms, including the Council of Europe and the European Union.
“Increased democratic oversight and demands for accountability from the court itself are necessary. Likewise, international mechanisms such as the Council of Europe and the European Union must be continuously urged to establish genuine control and monitoring of this court to determine whether it is applying the standards. The state, the government and all institutions must focus their attention in this direction. Kosovo must never create situations that classify it as a state obstructing justice, but must find acceptable ways to protect human rights and a fair trial, without attempting to impose justice through laws or politics,” he said.
Qelaj assessed that the structure and manner of operation of the Specialist Chambers raise concerns about their relationship with Kosovo’s institutions, while saying that the implementation of the legal amendments remains an issue that must be assessed.
“Our analysis has shown that the court’s structure and the way it has operated are entirely outside the system of the Republic of Kosovo. This form of decision-making within an autonomous structure that does not belong to Kosovo, which Kosovo established, while being accountable to donor countries, raises many concerns and dilemmas. How matters will proceed must be followed closely. The fact that implementing the legal amendments will be challenging is indisputable, just as it is indisputable that the Assembly has the right to approve these laws. Whether they are in compliance with international obligations and to what extent they will be implemented remains to be seen, but at the same time we must also engage in other aspects of institutional action to guarantee a fair trial,” Qelaj concluded.
