Legal and political challenges of the PDK’s initiative to reshape the Special Court

Only a few days after the Specialist Chambers convicted four former KLA leaders — Hashim Thaçi, Jakup Krasniqi, Kadri Veseli and Rexhep Selimi — of war crimes, the Democratic Party of Kosovo submitted to the Assembly a proposal to amend the law regulating this court.

Although the PDK stressed that it is not seeking the dissolution of what is known as the Special Court, its amendments would fundamentally alter the scope of the mandate, from the jurisdiction and the time period it covers to the severity of sentences and the fate of cases that would fall outside its competences.

What path is this initiative expected to follow in the Assembly, and what legal and constitutional obstacles stand before it?

Changes sought by the PDK

The main opposition party’s draft law aims to narrow the Special Court’s jurisdiction only to the criminal offenses cited in a 2011 report of the Parliamentary Assembly of the Council of Europe, a document that addressed, among other things, suspicions of organ trafficking in Kosovo’s post-war period.

According to the proposal, the time period under investigation would also change: from January 1998 – December 2000, it would shift to the interval 1 July 1999 – December 2000.

Likewise, the PDK suggests that the maximum sentence the Court may impose be 15 years in prison, that sentences be served in Kosovo’s territory, and that convicted persons have the possibility of a presidential pardon.

Procedure in the Assembly

The document was submitted to the Assembly on 22 September, but its path to a plenary session requires the completion of several preliminary steps. The Rules of Procedure provide that, after submission, the draft law be forwarded to the Government for an opinion. Then, before the first reading in session, it must pass through the filter of the relevant parliamentary committee, which reports to the Assembly with a recommendation.

However, Kosovo’s new legislature, constituted on 13 September, has not yet established its committees. Meanwhile, the PDK has challenged before the Constitutional Court the very process of constituting the Assembly, claiming constitutional violations, and the Court has not yet given any response.

How many votes can the initiative gather?

To amend a law, a simple majority is needed in the 120-seat Assembly, that is, at least 61 deputies.

It is still not known exactly what political support this initiative will have. The Alliance, the other opposition partner, has supported it, while the ruling Vetëvendosje Movement has said it will analyze it from a legal standpoint. The Democratic League of Kosovo, the second opposition party, has not yet taken a public position.

In terms of numbers, the PDK holds 22 seats, LVV 53, the Alliance 7, and the LDK 18. Minority communities have a total of 20 seats.

However, if the changes were to also involve the Constitution, then the threshold would rise significantly: two-thirds of all deputies would be needed, including two-thirds of the seats reserved for minorities.

Is the law enough to change the Special Court?

This remains one of the central legal dilemmas that will accompany discussion of this initiative. The Specialist Chambers were established on the basis of a constitutional amendment, an international agreement, and a specific law.

Gzim Shala, a researcher at the Kosovo Law Institute, told Radio Free Europe that any legal modification “must not undermine the obligations Kosovo has undertaken” through the constitutional amendment and international agreements. He added that “any change to the law is subject to a review of its legality by the Specialist Chamber of the Constitutional Court in The Hague, composed of three international judges.”

Shala also stressed that to be practically enforceable, these changes must be carried out in consultation and cooperation with Kosovo’s key international allies.

The European Union side did not comment on the announcements or plans, but reconfirmed its continued support for the Special Court. Radio Free Europe also sought a reaction from the U.S. State Department, but had not received a response by the time of publication.

Professor of constitutional law Visar Morina told Radio Free Europe that changes “that affect the existence or the mandate of the Specialist Chambers should first be addressed at the constitutional level and then through legal changes.”

Meanwhile, lawyer Amer Alija, an expert on war crimes trials, warned that “amending or repealing only the law could create a serious conflict” with the Constitution and international agreements, because an ordinary law “cannot take precedence” over them.

What is foreseen for existing cases and decisions?

The PDK’s draft law stipulates that procedures already underway at the Special Court will continue under the current rules until a final decision. For those cases that would remain outside the court’s jurisdiction, the document foresees the possibility of their transfer to Kosovo.

Former People’s Advocate Hilmi Jashari told Radio Free Europe that merely amending the law would not automatically result in the release of persons already convicted. Referring to the 16 September verdict, which sentenced Thaçi, Krasniqi, Veseli and Selimi to a total of 81 years in prison, Jashari explained that their release “would require a decision by the competent judicial body, for example as a result of an appeal decision, or another clearly defined legal basis.”

He added that any change in the functioning of the Special Court must necessarily be accompanied by a mechanism that “would guarantee the continuity of procedures” and prevent the creation of “a legal vacuum.” / REL