On October 6, Kosovo’s Assembly approved changes to the Law on the Specialist Chambers and the Specialist Prosecutor’s Office. The move followed the sentencing of four former leaders of the Kosovo Liberation Army to a total of 81 years in prison on September 16 for war crimes. However, the Assembly’s approval does not mark the end of the process.
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Kosovo’s newly elected president, Justina Shiroka Pula, is expected to sign and promulgate the law within eight days of its approval by the Assembly.
If she does not act within that timeframe, the law is considered promulgated and is published in the Official Gazette.
Flamur Hyseni, a professor of law at the University of Pristina, told Radio Free Europe that the final content of the amendments could be assessed accurately only after the law is published.
Hyseni said it remains essential for any legal changes to comply with Article 162 of the Constitution and with Kosovo’s international obligations.
Meanwhile, the Kosovo Law Institute told RFE that during the eight-day period, the possibility remains open for the legal changes to be challenged before the Constitutional Court by authorized parties, including at least 10 lawmakers and the Ombudsperson, as provided for by Kosovo’s Constitution.
According to KLI researcher Gzim Shala, this is particularly important because the changes affect the jurisdiction, sentences and procedures of the Specialist Chambers, which are not governed solely by an ordinary law.
Article 162 of the Constitution grants the Specialist Chambers special status. Any legal change that potentially conflicts with this article could be alleged to constitute a constitutional violation.
Does the new law automatically bind the Court?
The law on the Specialist Chambers, with the amendments approved by the Assembly, provides, among other things, for limiting the Court’s mandate in The Hague, transferring cases that fall outside its jurisdiction to justice institutions in Kosovo, and limiting the maximum sentence to 15 years in prison.
The law also provides for sentences to be served in Kosovo and for the possibility of presidential pardons.
However, according to Hyseni, the Specialist Chambers are part of Kosovo’s legal system and operate on the basis of the Constitution and the special law.
He stressed that the approval of the legal changes does not mean they will automatically be applied in judicial proceedings. According to him, the law must comply with the Constitution, while its concrete implementation requires respect for judicial independence, the hierarchy of legal norms and international obligations.
Shala, meanwhile, said that if the law and its amendments are promulgated, they will become part of Kosovo’s legal order and seek to change the legal framework of the Specialist Chambers.
But he too believes that the Specialist Court is not immediately obliged to implement the law.
According to Shala, this does not happen automatically, nor in a way that would create the impression that the Assembly can unilaterally change procedures in The Hague.
He added that the functioning of the Specialist Court is based on Constitutional Amendment 24, the ratified agreement between Kosovo and the European Union, and the Host State Agreement with the Netherlands.
Ratified international agreements, Shala said, take precedence over ordinary laws. For this reason, he said, Kosovo cannot change through domestic law alone the obligations it has undertaken toward the Netherlands, the EU and the Specialist Chambers mechanism.
He stressed that any transfer of individuals, files or evidence, or the enforcement of sentences in Kosovo, requires specific procedures, institutional cooperation and compliance with the relevant international agreements.
Continuity of the old law
The law on the Specialist Chambers, including its amendments, can produce legal effects only after being promulgated in the Official Gazette and entering into force.
Hyseni said the potential impact on existing decisions and proceedings of the Specialist Chambers can be assessed only once the final content of the law is known and the constitutionality of the relevant provisions has been reviewed.
Until then, he stressed, any conclusion about the concrete legal effects would be premature.
The KLI assesses that the law’s entry into force does not, in itself, annul the judgments or decisions of the Specialist Chambers.
According to Shala, the approved text itself stipulates that cases pending before the Pre-Trial Judge, the Trial Panel or the Appeals Panel will continue under the old law until the Appeals Panel issues its judgment.
Therefore, Shala said, for cases that are under appeal, the changes do not automatically halt proceedings in The Hague or immediately transfer them to Kosovo’s Supreme Court.
He added that the law seeks the immediate application of certain provisions, including limiting the maximum sentence to 15 years, serving sentences in Kosovo and the possibility of individual pardons.
However, according to him, these provisions do not automatically produce consequences for final decisions or agreements on the enforcement of sentences.
Regarding final decisions, Shala added, the law itself provides for the use of extraordinary legal remedies and constitutional standards, while any effect must also comply with the Constitution and Kosovo’s international obligations.
